Brief for the Respondents in Opposition — Weingartner v. Union Oil Co.

In the Supreme Court o

> United ‘States

OctToBer TERM, 1970

No. 800

¥

| FRANK K. WEINGARTNER, ET AL.,

Petitioners,

vs.

UNION O1L CoMPANY OF CALIFORNIA, "

Respondent.

Brief for Respondent in Opposition

to Petition for Writ of Certiorari

Moses Lasky

Brobeck, Phleger & Harrison

111 Sutter Street

San Francisco, California 94104

Telephone: 434-0900

Attorney for Respondent

RICHARD HAAS ° a

111 Sutter Street

San Francisco, California 94104

Of Counsel

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET. SAN FRANCISCO 94105

Cpinions Below 1

Jurisdiction 1

Statutes Involved 2

rial tias , 3

Statement of the Case 3

A. The Proceedings Concerning Class Action a

B. ‘The Nature of the Case and Its Background 5

Argument 8

Conclusion =

%

”

Pares

Alexander v. Texas Co., 165 F.Supp. 53 (W.D. La. 1958) ........ un 2

All American Airways v. Eldred, 209 F.2d 247 (2 Cir. 1954) ...... 9.

Borden Company v. Sylk, 410 F.2d 843 (3 Cir. 1969) 13

Brenner v. Texas Co., 140 F.Supp. 245 (N.D. Cal. 1956) .............. —

Brotherhood of Railroad Trainmen v. Baltimore & Ohio R. Co.,

331 U.S. 519 (1947) . ; 10, 11

Broussard v. Socony Mobil Oil Co., 350 F.2d 346 (5 Cir. 1965)... 12

Caceres v. latecnational Ais-Tranepest Ass'a., 422 F.2d 141 (2°Cir.

1970) 9, 11, 12

City of New York v. International Pipe & Ceramics Corp., 410 F.2d

295 (2 Cir. 1969) 4,9, 11

Davis v. Preston, 280 U.S. 406 (1930) 10

Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2 Cir. 1966) cert. den.

386 U.S. 1035 11,12

Fazakerly v. E. Kahn's Sons Co., 75 F.2d 110 (5 Cir. 1935) ........... 10

Fugua v. Bidwell, 281 F.2d 753 (6 Cir. 1960) 10

Gillespie v. United States Steel Corp., 379 U.S. 148 a 13

Goldstein v. Cox, 396 U.S. 471 (1970) 14

Green v. Wolf Corp., 406 F.2d 291 (2 Cir. 1968) 11

Guidry v. Continental Oil Co., 350 F.2d 342 (5 Cir. 1965) ....... 12

Harris v. Palm Springs Alpine Estates, Inc, 329 F.2d 909 (9 Cit

1964) 9

Hicks v. Bekins Moving & Storage Co., 87 F.2d 583 (9 Cir. 1937) 10

Hohmann v. Packard Instrument Co., 399 F.2d 711 (7 Cir. 1968) .. 9

Jumps v. Leverone, 150 F.2d 876 (7 Cir. 1945) ; 9

Knuth v. Erie-Crawford Dairy Co-op Ass’n., 395 F.2d we Cir.

1968) 9

Iwex oF AuTHonmins

Lessig v. Tidewates Oil Co., 327 F.2d 459 (9 Cir. 1964) cert. den.

377 U.S. 993

Lewis v. United States, 216 U.S. 611 (1910)

Lipsett v. United States, 359 F.2d 956 (2 Cir. 1966)

Milgram v. Kaew’, Sat., 28 SAS 2p <9 Ge. S008) ent, Om.

343 U.S. 929

Moore v. Backus, 78 F.2d 571 (7 Cir. 1935)

Munson v. Richfield Oil Corp., 91 F.Supp. 171 (S.D. Cal. 1950) ....

Myers v. Shell Oil Co., 96 F.Supp. 670 (S.D. Cal. 1951) ............ on

Nolfi v. Chrysler Corp., 324 F.2d 373 (3 Cir. 1963)

Osborne v. Sinclair Refining Co., 286 F.2d 832 (4 Cir. 1960) cert.

den. 366 U.S. 963

Parr v. United States, 351 U.S. 513 (1956)

Partin v. Hassan Motors, Inc., 363 F.2d 104 (6 Cir. 1966) ............

Quinn v. Mobil Oil Co., 375 F.2d 273 (1 Cir. 1967) cert. dismissed

389 U.S. 801

Rogers v. Alaska S.S. Co., 249 F.2d 646 (9 Cir. 1957) .....-...--sese-se=

Simpson v. Union Oil Co. of California, 377 U.S. 13 (1964) ........

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

Spencer v. Sun Oil Co., 94 F.Supp. 408 (D. Conn. 1950) ..........-...--

Standard Oil Co. v. Moore, 251 F.2d 188 (9 Cir. 1957) cert. den.

356 US. 975

Tileston v. Ullman, 318 U.S. 44 (1943)

Tri-State Corporation v. Alabama, 370 F.2d 544 (5 Cir. 1967) ........

United States v. Adamant Co., 197 F.2d 1 (9 Cir. 1952) cert. den.

sub nom. Bullen v. Scoville, 344 U.S. 903 (1952)

United States v. Shelley, 218 F.2d 157 (2 Cir. 1954)

6, 12

v

iv InpDEX OF AUTHORITIES

Pages

Webb v. Beverly Hills Federal Savings & Loan Association, 364 F.2d :

146 (9 Cir. 1966) 10

Weingartner v. Union Oil Company, 1966 Trade Cases {[ 71,757

(N.D. Cal.) 7

STATUTES AND RULES

15 United States Code § 15 ie: ce

28 United States Code

§ 1254(1) hirie- 1

§ 1291 2, 3, 8,9

§ 1292(b) 1, 2, 3,9, 14

Federal Rules of Civil Procedure

Rule 23 =~ 2, 3, 4, 8,9

Rule 54(b) ........ 13

Rule 82 ‘ 9

OTHER AUTHORITIES

Notes of the Advisory Committee on Rule 23(c)(1), 28 U.S.C.A.

er PI, TIP I I aD cccsiccccscscccsnesenessnsscoscene 8

In the Supreme Court of the

United States

OctToBER TERM, 1970

No. 800

FRANK K. WEINGARTNER, ET AL.,

Petitioners,

vs.

UNION O1L COMPANY OF CALIFORNIA,

Respondent.

Brief for Respondent in Opposition

to Petition for Writ of Certiorari

OPINIONS BELOW

. The opinion of the Court of Appeals (Pet. App. A) is not

yet reported in F.2d but appears in 1970 Trade Cases § 73, 291.

The District Court’s opinion is not reported but is in Appendix

B to the petition and is quoted in full at p. 5 infra.

JURISDICTION

‘The District Court had jurisdiction under 15 U.S.C. § 15. The

Court‘of Appeals had no jurisdiction and for that reason dismissed

the appeal, because the appeal was from an interlocutory order

and the District Court had refused to certify the case for an

_ interlocutory appeal under. 28 U'S.C. § 1292(b). This Court's

jurisdiction is invoked under 28 U.S.C. § 1254(1). 2

2

STATUTES INVOLVED

Petitioners sued to assert claims under Sections 1 and 2 of

the Sherman Act and Section 4 of the Clayton: Act, ali adequately

quoted in Pet. App. D. They sought to maintain the suit as a

class action under F.R.Civ. Proc. Rule 23, also quoted in Pet.

App. D.

The relevant portion of Rule 23, for present purposes, is sub.

(<)(1):

“As soon as practicable after tha commencement of an

action brought as a class action, the court shall determine .

by order whether it is to be so maintained. An order under

this subdivision may be conditional, and may be altered

or amended before the decision on the merits.”

The petition fails to quote statutes governing this appeal:

28 U.S.C. 1294

“The courts of appeals shall have jurisdiction of

from all final decisions of the district courts of the United

“ States, the United States District Court for the District of

the Canal Zone, the District Court of Guam, and the Dis-

trict Court of the Virgin Islands, except where a direct re-

view may be had in the Supreme Court.”

28 U.S.C. 1292(b)

“When a district judge, in making in 2 civil action an

order not otherwise appealable under this section, all be

of the opinion that such an order involves a controlling

question of law as to which there is substantial ground

for difference of opinion and that an immediate appeal from

the order may materially advance the ‘ultimate termination

Se een ee Sling aah eater.

The Court of Appeals may thereupon, in its discretion, per

mit an appeal to be taken from such order: Sesdiiat dew

All emphasis in in quotations has been added: unless otherwise noted.

eee Se ee oe tel ty Oe quae “R.”, references to

Cees Se

: ,

a wi .

0

oe Ss ened Prom ee ee ee "

bit athe acti oe rarstenerve sea oe > oat

3

That for hereunder shall not

2p puailindeaetuanetbemmaeiomtan

or the Court of Appeals or a judge thereof shall so order.” _

: — QUESTION PRESENTED

* ety cn quectenemebiaitiaalaiipanie tage

Is an interlocutory order, declining to determine:that “on this, —

the present record” an action may proceed under F.R.Civ. Proc.

Rule 23 as a class action, appealable as a “final decision” under

28 U.S.C. § 1291, where the action is yet to be tried? Is it not

merely an interlocutory order not appealabic‘in the absence of

a certification under 28 U.S.C. § 1292(b)? _

The other “questions” stated in the petition (pp. 2, 4) are

not present at all, as they relate to the issue whether the District

Court's order was érroneous. That issue was never reached by

aitecttiasines

STATEMENT OF THE CASE

Most of the Statement of the petition consists of assertions

about the merits of the substantive claims, although the case has

not yet been tried, or of ‘assertions relative to the propriety of

a class action, although the facts were found to the contrary in

the District Court and that determination was not reviewed by

. the court below. nee ee NE Se ep eon

presently involved.

(. ‘Cts tiemntagetientatie --

This action was commenced by five of the fifteen petitioners

(R. 1) before new Rule 23 of the Rules of Civil Procedure was

adopted in 1966. Under old Rule 23 the practice was ‘for a

plaintiff to assert his claim in one count and répeat it as a class

action in another; a motion to strike the second count was the

means of challenging the class aspect. That practice was followed

-here (R. 8, 14). While Union's motion to strike was pending,

NL

ee | ‘ 5

~\ 4

Rule 23 was amended and thereafter the District Court denied

Union's motion on the ground that (R. 359-360):

ings have not yet reached a point where it is

ptacticable for the Court to determine whether this action

is to be maintained as a class action ¥ * * the Court re-

; ean serving until a later date the question this action

may be so

In the interim, and| also later, a number of persons moved to

intervene (R. 40-56, 131-198, 296-302) and ten were granted

leave to do so (R. 359), bringing the number of plaintiffs to

_ fifteen.

Sites 20 etheth, satis 4 stan tial heen Sental telenmnaston,

and still others who had not sought to intervene, all represented

7 by petiti thereafter filed similar complaints in the <

Catal Dict 9f Calor (D9) il a, ttn

counsel moved in those cases under Rule 23 to declare them

' maintainable as class actions (R. 657-833). Those motions were

denied by the court in the Centrfl District (R. 659).

The same counsel then filed their motion in this case for:an_

order declaring affirmatively that it could be maintained as a

class action (R. 489). At the hearing the District Court requested

specific statements as to contentions and issues and a factual show-

ing to enable it to reach a determination (Rep. Tr. of March 29, ©

ee ee ee eee

Se ee es Sho anne Soa

s-adliger 3 bs (2). (5 | Mdicition

(} fads ts Rp tle toa eee

that plaintiffs have failed to ‘

therefop must be and is again denied.”

Petitioners’ counsel then requested a certification under 28

U.S.C. § 1292(b) to permit an interlocutory appeal from this _

(Pet. 20). That appeal was dismissed by the court below on the

ground that the order was not appealable. (Pet-App.A, p. viii).

It is to review that dismissal of the appeal that. petitioners now

seek review by this Court. :

_B. -The Nature of the Case and‘its Bechground.

Inasmuch as the only question presentable to this Court is the

same as on an interlocutory appeal in any case from an order

6

under Rule 23, the particular facts of this case are of small, if

any, relevance. We review them just enough to dispel the erroneous

picture of the petition. |

Plaintiffs are or were service station dealers. The substantive

claims asserted relate to two entirely different economic relation-

ships utilized by Union in different periods for the marketing of

gasoline. The first was a system of marketing which Union used,

until April 1964, involving consignment of gasoline to its dealers.

On April 20, 1964 this Court decided Simpson v. Union Oil Co.

of California, 377 U.S. 13. On April 27, 1964, as soon as Union

could obtain and digest that’ decision, it advised each of its

dealers of what this Court had held and informed him that he

was “therefore free to set the price at which you sell gasoline to

the motoring public... .” (K. 802). Union then offered to its

dealers a choice of two types of purchase and sales agreement,

and all chose one or the other. o ,

As respects the pre-April 1964 period, although petitioners’

claims rest on an assumption that the consignment system was the

same as that used at a still earlier period of time and involved in

Simpson, the kind of damages claimed is different. In Simpson

the principal claim was based on Union's refusal to continue to

lease its premises to the dealer or to deal with him. No plaintiff

makes that claim here; the claim is simply that each plaintiff

would have made more in the sale of gasoline but for the provi-

sion of the consignment agreement respecting his sales price. That _

involves the predicate that the dealer observed Union's price direc-

tions; the case as to each plaintiff is controlled by the fact, indi-_

vidual to him, whether he paid any attention to Union's price

direction or, instead, charged what he wanted when he wanted.

The claims as respects post-April 1964 differ from those per-

taining to the prior time in that they rest on no unlawful agree-

ment. Counsel so conceded in an early application in this case, as

c : rf

was made clear in an opinion by the District Court reported in

Weingartner v. Union Oil Company, 1966 Trade Cas. § 71,757,

at pp. 82500-01; rr tae

“The record now is clear to the effect that plaintiff does

not allege or claim that either the Retail Dealer Purchase

and Storage Agreement or the Retail Dealer Purchase Con-

tract in use by defendant since the ruling in Simpson are in

themselves unlawful.”

The claim relative to post-April 1964 is that, despite the lawful-

ness of his supply agreement, each plaintiff was coerced to adhere

to resale prices. Thus the case of each dealer rests on its facts,

individual to him, for any dealer's claim of being “ordered”,

“threatened”, or “coerced” and the like must necessarily be

proved by different conversations between different claimants and

different members of what the complaint styles “‘a vast army of

{Union} employees” (R. 344). |

Before ruling on plaintiffs’ motion to declare that the action

could be maintained as a class action, the District Court called

on counsel to make a factual showing of the existence of some

predominant common issue. The record then made shows that

there was none. Depositions had been taken of the some 70

Union Oil dealer-plaintiffs in the similar Central District cases,

and about 74 pages of their testimony were introduced here by

Union (R. 658-732). They demonstrated to the satisfaction of

the District Court that the situation of each dealer was individual

and different from that of every other. Many of these dealers

testified that they had no grievance whatever with Union con-

** ceivably related to the allegations in their complaints.* Many

testified that they had charged whatever retail prices their own

_ business judgment dictated in the consignment period and in the

*E.g., Jacobus (R. 662-63, 664); McDonald (R. 666, 667); Bilbrey

(R. 676-77); Anondson (R. 670, 671); Golden (R. 689); Parker (R.

707); Bowen (R. 710).

post-consignment period,* and that there was no pressure from

Union to charge any price.**

An order under F.R.Civ.P. Rule 23 determining that an action

may be not maintained as a class action is always without preju-

dice to renewal during the progress of the case. Rule 23(c) (1)

expressly provides that such an order “may be altered or amended

before the decision on the merits.” The Notes of the Advisory .

Committee on Rule 23(c)(1) state (28 U.S.C.A. Rules 17-33,

1970 Pocket Part, p. 82):

“A determination once made can be altered or amended

before decision on the merits if, upon fuller development

of the facts, the original determination appears unsound.”

Before the District Court could determine that the action could

be maintained as a class action, the record before it would have

to support findings of fact that the four “prerequisites to a class

action” expressed in Rule 23(a) existed and that the “additional”

tests necessary under Rule 23(b) were also present. The order

appealed from specifically stated that “on this, the present record,

the court finds no basis to declare a class action” (p. 5, supra).

Counsel are free to make another record, if they can, or the court

can change its mind on the present record.

Plainly, then, the District Court's order was interlocutory and

not final within the meaning of 28 U.S.C. § 1291.

*E.g., Reisner (R. 690, 691-92, 693-94), Deach (R. 698), Jacobus

(R. 661-62, R. 663-64), McDonald (R. 666), Bilbrey (R. 675-76),

Anondson (R. 669), Curtis (R. 680-681, 683), LeMaster (R. 685-86),

Deach (R. 695-96, 698), Jepsen (R. 700-701), Parker (R. 704-05,

705-06), Bowen (R. 709), Neal (R. 711-13), Drevlo (R. 715-16, 717),

ae (R. 719), Munsee (R. 723), Powell (R. 725-26, 727-28), Aljian

(R. 731).

**E.¢., LeMaster (R. 685-86), Bilbrey (R. 675-76), Curtis (R. 681-

82), Deach (R. 695-96, 697), Jacobus (R. 661), McDonald (R. 666),

Anondson (R. 669), Reisner (R. 690-91), Jepsen (R. 700-01), Parker

(R. 704, 707-08), Bowen (R. 709-10), Drevlo (R. 715-16), Watch

(R. 718-19), Munsee (R. 723, 724-25), Powell (R. 725-26).

9

On this question the Circuits are in accord. The Second Circuit

accords with the court below that an order during the course of

the case determining that an action may not be maintained as a |

class action is not appealable. City of New York v. International

Pipe & Ceramics Corp., 410 F.2d 295 (2 Cir. 1969); Caceres v.

International Air Transport Ass'n., 422 F.2d 141 (2 Cir. 1970)

(both aatitrust cases).

In the Seventh Circuit an appeal from an order under new

Rule 23 adverse to a class action has been permitted only as an

interlocutory appeal where taken under the interlocutory appeal

procedure of 28 U.S.C. § 1292(b). Hohmann v. Packard Instru-

ment Co., 399.F.2d 711 (7 Cir. 1968). Plaintiffs unsuccessfully

tried to utilize that procedure in the present case, but certification

under § 1292(b) was denied by the District Court.

The question of appealability of an order adverse to class

action under new Rule 23, as a “final” order under § 1291, has

not arisen in other circuits. But under former Rule 23 it was uni-

formly held that an order striking the averments of a class action

but permitting the action to continue as to the named plaintiffs

is not appealable. E.g., All American Airways v. Eldred, 209

F.2d 247, 249 (2 Cir. 1954); Lipsett v. United States, 359 F.2d

956 (2 Cir. 1966); Jumps v. Leverone, 150 F.2d 876 (7 Cir.

1945); Rogers v. Alaska SS. Co., 249 F.2d 646, 650 (9 Cir.

1957).* The amendment to Rule 23 could not have altered this

principle, for to do so would expand the jurisdiction granted to

the Courts of Appeals by 28 U.S.C. § 1291, contrary to Rule: 82.

In Snyder v. Harris, 394 U.S. 332 (1969), this Court held that

new Rule 23 could not enlarge jurisdiction and therefore did not

permit aggregation of the claims of class members in determining

*Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909 (9 Cir.

1964) and Knuth v. Erie-Crawford Dairy Co-op Ass’n., 395 F.2d 420

(3 Cir. 1968), cited by petitioners, are not contrary. In both the

District Court dismissed not merely the class action count but the whole

case so that the appeal was by the named plaintiffs from a final order

dismissing their suits in entirety. ‘

10 ;

diversity jurisdiction. These principles about non-enlargement of

jurisdiction necessarily apply as much to jurisdiction of the appel-

late courts as to jurisdiction of the district courts.’

An order denying maintenance as a class action is analogous to

orders denying permissive intervention or consolidation, neither

of which is appealable. Brotherhood of Railroad Trainmen v.

Baltimore & Ohio R. Co., 331 US. 519, 529 (1947); Nolfi v.

Chrysler Corp., 324 F.2d 373 (3 Cir. 1963).

In an effort to escape the interlocutory nature of the order

appealed from, counsel postulates the existence of service station

dealers who will die or become bankrupt or whose addresses will,

inexplicably, be “lost’’, and asserts, as to these postulated persons,

that the order appealed has terminated their claims (Pet. 23, 24).

This argument founders in fact and in law, for several reasons. |

The first obvious truth is that deaths or bankruptcies do not

terminate antitrust claims, for the claims pass to personal repre-

sentatives of the deceased or to the trustee in bankruptcy. Hicks

v. Bekins Moving & Storage Co., 87 F.2d 583 (9 Cir. 1937);

Moore v. Backus, 78 F.2d 571 (7 Cir. 1935); Fazakerly v. E.

Kahn's Sons Co., 75 F.2d 110, 114 (5 Cir. 1935).

In the second place, the persons whose claims are postulated

as existing and terminated are not those here appealing. Nothing

is more elementary than the principle that only a person aggrieved

by an order may appeal from it. Parr v. United States, 351 US.

513, 516 (1956) ; Tileston v. Ullman, 318 US. 44 (1943) ; Davis

v. Preston, 280 U.S. 406 (1930); Lewis v. United States, 216

U.S. 611 (1910).* The order here appealed from does not adju-

dicate any claim which any of the petitioners asserts on his own

_ *To the same effect: United States v. Adamant Co., 197 F.2d 1, 5

(9 Cir. 1952), cert.den. sub nom. Bullen v. Scoville, 344 U.S. 903 (1952);

Webb v. Beverly Hills Federal Savings & Loan Association, 364 F.2d

146, 149 (9 Cir. 1966); United States v. Shelley, 218 F.2d 157, 158

(2 Cir. 1954); Miélgram v. Loew's, Inc., 192 F.2d 579, 586 (3 Cir.

1951), cert. . 343 U.S. 929; Tri-State Corporation v. Alabama, 370

F.2d 544, 545°(5 Cir. 1967); Fuqua v. Bidwell, 281 F.2d 753, 754

(6 Cir. 1960).

$ 11

behalf. Their claims to recover under the Clayton Act still remain |

pending below, awaiting trial and adjudication. It is not the peti-

tioners who are aggrieved by an order that alleged claims of

others are not to be involved in this action. No plaintiff would

have had standing to appeal from an order denying leave to a

non-party to intervene as a plaintiff in the case. Indeed the order

appealed from did not even prevent the supposed unnamed mem-

bers of the class from bringing their own actions and thus left

them in the same position they would have been in if they had

unsuccessfully moved to intervene. Yet it is settled that an order

denying permissive intervention is not appealable, even by the

party seeking to intervene. Brotherhood of Railroad Trainmen v.

Baltimore & Ohio R. Co., 331 US. 519, 524 (1947):

“The permissive nature of such intervention necessarily im-

plies that, if intervention is denied, the applicant is not legal-

ly bound or prejudiced by any judgment that might be en-

tered in the case. He is at liberty to assert and protect his

interests in some more appropriate proceeding. Having no

adverse effect upon the applicant, the order denying inter-

vention accordingly falls below the level of appealability.”

In simple truth, although the motion to declare a class action

. Was purportedly made by the plaintiffs, their names were con-

scripted for the purpose as they are now conscripted as petitioners;

none of them has any real interest in it; the real parties in interest

on whose behalf the motion was made and the appeal taken are

petitioners’ counsel.

The necessity that the parties appealing be aggrieved in order

to appeal is illustrated by two other Second Circuit Cases in which,

for unusual circumstances, a class action order was held appeal-

able, Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2 Cir. 1966),

cert. den. 386 U.S. 1035, and Green v. Wolf Corp., 406 F.2d 291

(2 Cir. 1968). In the later cases of City of New York v. Inter-

national Pipe & Ceramics Corp. 410 F.2d 295 (2 Cir. 1969) and

Caceres v. International Air Transport Assn., 422 F.2d 141 (2 Cir.

12

1970), these two cases were distinguished as turning on the

exceptional factual situation that in both there was but one named

plaintiff whose own claim was so small ($70.00 in Eisen) that

no competent attorney would prosecute a claim for so little. There-

fore the determination adverse to a class-action was the “death

knell” of the named plainiff's own case and was tantamount to

a dismissal of Ais claim. Here the facts are widely different; the

15 named plaintiffs assert claims in excess of $117,900 before

trebling, or $353,700. Petitioners do not even assert that the

“death knell” theory is applicable, and the court below was “not

convinced by any representation made to [it} by plaintiffs that

they lack the economic ability to finance their part of this law-

" suit” (Pet. App. A., p. viii). Antitrust litigation is often prosecuted

by service station dealers acting on their own behalf and without

the benefit of class actions.* a

In the third place, there is no basis to assume that anybody who

has a grievance has failed to present it. Within the first year

counsel sought intervention for some 49 other persons, and. they

either did intervene or filed: suits in Los Angeles. Counsel later

filed still other cases in the Central District of California for other

persons to an aggregate of another 34. Plainly, Union's dealers |

were canvassed to join the litigation and all those who wished to

assert claims did so by suing. The effort to maintain a class action

*As noted, five other cases identical to the present are proceeding in

Los Angeles. Other examples of such litigation are Lessig v. Fidewater

Oil Co., 327 F.2d 459 (9 Cir. 1964), cert. den. 377 U.S. 993; Simpson

v. Union Oil Company, 377 US. 13 (1964); 396 US. 13 (1969);

Standard Oil Co. v. Moore, 251 F.2d 188 (9 Cir. 1957), cert. den.

356 U.S. 975; Quinn v. Mobil Oil Co.,.375 F.2d 273 (1 Cir. 1967),

cert. dismissed 389 U.S. 801; Guidry v. Continental Oil Co., 350 F.2d

342 (5 Cir. 1965); Osborne v. Sinclair Refining Co., 286 F.2d 832

(4 Cir. 1960), cert. den. 366 U.S. 963; Alexander v. Texas Co., 165

a oe 53 (W.D. La. 1958); Brenner v. Texas Co., 140 F.Supp. 240

(N.D. Cal. 1956); Myers v. Shell Oil Co., 96 F.Supp. 670 (SD. Cal

1951); Spencer v. Sun Oil Co., 94 —. 408 (D. Conn. 1950);

Broussard v. Socony Mobil Oil Co., 350 F.2d 346 (5 Cir. 1965);

Munson v. Richfield Oil Corp., 91 F.Supp. 171 (S.D. Cal. 1950).

2

2

13

was an effort to emboil still others in litigation in which they had

no desire to participate.

The non-appealable nature of the order is demonstrable by

another consideration. If the so-called members of the class

had been named plaintiffs and if the order had adjudicated

that they had no rights on the merits, leaving the claims of. the

15 petitioners unadjudicated, as they are unadjudicated here,

_the order would not be appealable, becayse a final judgment

as to fewer than all claims or parties can be entered “only upon

an express determination that there is no- just reason for delay

and upon an express direction for the entry of judgment” R.C.P.

54(b). As otherwise the order “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” (Rule 54(b) ),

it is not appealable. Partin’v. Hassan — Inc., 363 F.2d 104

(6 Cir. 1966).

Counsel's reliance on Gillespie v. United States Steel Corp.,

379 US. 148 (1964) is unfounded. There the District Court

made an order adjudicating that there could be no recovery by

an administratrix for the benefit of a brother and sisters of a

decedent for whose death the administratrix was suing. The order

appealed from “effectively cut off” the claims and thus gave

“ample reason to view their claims as severable in deciding the

issue of finality, particularly since the brother and sisters were

separate parties in the petition [to the Court of Appeals} for ex.

traordinary relief.” 379 U.S. at 153. Here, the trial court has made

no adjudication about the merits of anybody’s claim, and no dealer

unnamed as a plaintiff appealed to the court below for any relief

for which it has petitioned this Court.

It is no great feat to imagine inconveniences, as counsel does,

consequent on holding interlocutory orders unappealable. As

stated in Borden a v. Sylk, 410 F.2d 843, 846 9 Cir.

1969) :

“Every interlocutory order involves, to sone degree, a

potential loss. That — however, must be balanced against

eer 14 .

the need. for efficient federal judicial administration as

evidenced by the Congressional prohibition of piecemeal

litigation. To accept the appellant's view is to invite the —

inundation of appellate ‘dockets with what have heretofore

been regarded as nonappealable matters * * * [and], is

also ready to invite a. geometrical increase in the already

unacceptable delay between the date of ‘fing and trial in

the metropolitan district courts.”

By enacting the interlocutory appeal procedure of 28 U.S.C.

§ 1292(b), Congress gave as much weight to the arguments in

favor of interlocutory appeals as it concluded they deserved.

By § 1292(b) it limited the power of the Courts of Appeals to

entertain interlocutory appeals. The present order is not included.

In Goldstein y. Cox, 396 U.S. 471, 478 (1970), this Court said:

‘‘# * * In the absence of clear and explicit authorization by

Congress, piecemeal appellate review is not favored, [cit.

omitted] and this Court above all others must limit its review

of interlocutory orders.”

It is respectfully submitted’ that there is no ‘shred of merit

in the petition. It should be denied.

> Dated: San Francisco, California, October 29th, 1970.

Moses Lasky

Attorney for Respondent

RICHARD Haas .

Of Counsel —

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