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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondents in Opposition
- **Published:** January 1, 1971
- **Citation:** 400 U.S. 1000

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0449%3A2. Public record. Not legal advice.