Appendix — Boshes v. General Motors Corp.

Supreme Court brief1971

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E. ROBERT: SEAVER, cue

In the 70-24 * a

Supreme Court of the Gnited tates —

Oc TOBER Tern, —

ROGER BOSHES, ESTHER K. ROERIG, CURTIS

COLLUM, FRANK JACKSON and JAMES TAYLOR,

Petitioners,

GENERAL ‘MOTORS CORPORATION and-the HONOR-——-————

“ABLE WILLIAM J. CAMPBELL, Judge of the United

States District Court for .the Northern District of

Illinois,

Respondents.

APPENDIX TO PETITION FOR WRIT OF CERTIORARI rome |

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT | ae

AnTHONY Brapitey Epex

1 North LaSalle Street

Chicago, Illinois 60602

e° Mitton K. Joserx

. 120 West Madison Street

: : Chicago, Tllinois 60602

CHartes LIEBMAN

120 West Madison Street

Chicago, Illinois 60602

Raymonp I. SurKorr

120 West Madison Street

Chieago, Tllinois 60602

Attorneys for Petitioners

The Scheffer Press, Inc.—ANdover 3-6850

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INDEX TO APPENDICES

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Appendix A. Proceedings in the District Gourt.

Plaintiffs’ District Court Civil Rule 22 motion ....

Plairitiffs’.: memorandum ‘in support of above mo-

STUNNED: « sSarnsciinsixisnasnieesiadineniiatsiaiididdaccedtoraionasnahiced anpioai

Plaintiffs’ métion for F. R.. Civ. Proe. Rule 23

CI deabertadcaceccevnsare attic oie p eens oe eeet ene ae

District Court order denying FRCP Rule 23. Mo-

tion and District Court Rule 22 Motion .............: ta

_ Notice of appeal from denial of Dist. Ct. Civil Rule a

22 motion’ iaguiieinisnstien aaiiacssmtasaanediecabedacatpabiatohesiniaiaaodan 8a

Notice of Appeal from denial’ of FRCP: Rule 23

motion sslaceniceaineindeulekeeisavetanaee i aiusehiidbeibadindeabehainlimueuices . 10a

Appendix B. Proceedings in the Court of Appeals on

Consolidated Appeals Nos. 18939-18940 | :

Appellee’s Motion to. Dismiss Appeals . scndnnonipapintts lla

Plaintiffs’ objections ‘to appellees? motion to dis-

WON picetscstantacersncecstacaicagen gfiriereeeeeecencnnnnnnnnsecenectene 17a

Order dismissing mndbiasch appeals ........ ee OVE

Petition for rehearing VERNER Rpt, Ee WORE z.. O08

Order denying petition for rehearing ............006: ‘39a

_ Appendix C. Proceedings in the Court of Appeals

On Original Mandamus No. 71-1104 .

Original. Petition for writs of mandamus/prohibi-

tion directed against District Court’s denial of ©

leave to communicate with members of class .... 40a

Order denying petition for mandamus .......... vesseeeeee 498

* IONE TNE CU ii cctieneaiorncwunsaencian eee O08

Order denying petition for rehearing .....:...........:. 5la

‘PAGE ,

Appendix I D. Proceedings in the Court of Appeals on

- Original Mandamus No. 71-1122

Original petition for writs of mandamus/prohibi-

tion directed against District Court’s refusal to

enter an FRCP Rule 23 order ..........0.00- Sameera 5la

Order denying petition for MANdAMUS ........ssssseeeee! 6la

Petition for rehearing .........:.0. ssehananapobsihigaleiensie cic

Order denying petition for rehearing sansa hadicos 63a

” ‘a Ieee

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

- FOR THE SEVENTH CIRCUIT

APPENDIX A. peeing. in the U. S. District Court

for the Northern District: of Hlinoy, Eastern Division in-

the case of Roger Boshes, et al. v. General Motors Corpora-

tion, No. 68C- 1454

3 5 L

— I~ tHe Unrtrep Seance DistricT _—

For the Northern District of Illinois —

Eastern Division

Rocer Bosukrs, et al., ‘)

Plaintiffs, .

en “No. 68 C 1454

Genera’ Morors Caisson. |

Defendant. |

- «MOTIONS FOR SUCCESSIVE. ALTERNATIVE

ORDERS TO TREAT CIVIL: RULE 22 IN

SUBSTANTIAL EFFECT AS AN. INJUNCTION,

_ AND TO MODIFY OR DISSOLVE SUCH.

INJUNCTION, AND FOR OTHER RELIEF;

OR-TO DECLARE SAID CIVIL RULE 22

NULL AND VOID; OR TO.EXPUNGE SAID.

| CIVIL'RULE 22” -

Come now plaintiffs and move the Court in successive

alternative order:

First, To construe and treat Civil Rule 99 of this Court

adopted April 15, 1970, insofar as applied to this case as

being in substantial effect an injunction, and to modify, and

dissolye such injunction so as to declare and establish the

—

—s

et LG ean: A,

Cre WORE

* —_—

Tight of, and to permit and authorize plaintiffs and/or

their counsel to make communications concerning this ac-

tion with certain potential or actual class members, to-wit:

the several States of the United States, through their re-

. spective Attorneys General, who are not formal parties to

this action, without subjecting such communications. to

prior censorship by the Court, and without subjecting such

communications to the prior entry by the Court of any ~~

order approving such communications; and without sub-

jecting such communications to subsequent disclosures to”

the Court and/or counsel, except for good cause shown, or

(if that relief be denied,)

Second, To declare said Civil Rule 22:null ab-velit for.

violation of the First Amendment to the U. 8. Constitution

and as being beyond the rule-making powers of _ Court

or (if.that*relief be denied,)

Third, To expunge Civil Rule 22 of this Court for viele

tion of the First Amendment to the U. S. Constitution and

as being beyond the rule-making powers of this Court.

: A. Bradley Eben’

Milton K. Joseph

Charles Liebman —

Raymond I. Suekoff

120 West Madison Street —

Chicago, Illinois 60602.

Attorneys for Plaintiffs, }

- Roger Boshes, et al:

an te oe

In THE UNITED STATES District Courr

For the Northern District of Llinois

Eastern Division - ‘

Rocer Bosues, et al., )

- Plaintiffs, ay =

weit Oe. No. 68 C 1454

GENERAL Motors Corporation, ; |

Defendant. | i

‘MEMORANDUM IN SUPPORT OF MOTION FOR 2

SUCCESSIVE ALTERN ATIVE ORDERS, =

_. (CIVIL RULE 22 IS IN SUBSTANTIAL EFFECT AN

'° INJUNCTION. .

i U.S. v. Cities Service Co., 410 F. 24 662, 663, Note lL.

‘Hotel, etc. Union, etc. v. Del Valle, 328 F.2d 885

- McCoy v. Louisiana State Board ecemeraet

345 F.2d 720.

If. .

™

_ CIVIL RULE 22 IS IN SUBSTANTIAL EFFECT AN’

INJUNCTION. JT WAS ADOPTED WITHOUT NO-

TICE. NEITHER THE ORDER ADOPTING IT NOR

THE RULE ITSELF SET FORTH ADEQUATE REA-

SONS FOR ITS ISSUANCE; ALL IN VIOLATION OF -

THE REQUIREMENTS OF RULE 65 OF = RULES

OF CIVIL PROCEDURE. - :

- &

a * oe

IIT.

CIVIL RULE 22 18 IN SUBSTANTI AL EFFECT AN

INJUNCTION. THE COURT HAS NOT FOUND THE

FACTS SPECIALLY, NOR STATED SEPARATELY

-. ITS CONCLUSIONS OF LAW ‘THEREON; ALL AS:

REQUIRED BY RULE 52 OF THE’ RULES OF CIVIL,

PROCEDURE.

. - See Harris Truck Lines, hit v. pale Meat Pack-

ers, Inc. (C.A.IIL, 1963) 313 F.2d 864.

. IV.

CIVIL RULE .22 IS INCONSISTENT WITH THE

RULES OF CIVIL PROCEDURE, AND IS, THERE-

FORE, BEYOND THE POWER OF THE DISTRICT

COURT TO ADOPT UNDER RULE 83 OF THE RULES

~. OF CIVIL PROCEDURE, apis UNDER U.S.C. TITLE

28, §2071. .

(a) THE NORTHERN DISTRICT OF ILLINOIS IS

THE ONLY DISTRICT WHICH HAS ADOPTED A

RULE OF THE NATURE OF CIVIL RULE 22. SUCH

A RULE SHOULD BE UNIFORM THROUGHOUT THE

FEDERAL SYSTEM, AND THERE IS NO SPECIAL:

SET O} CIRCUMSTANCES UNIQUELY LOCAL TO

THE NORTHERN DISTRICT OF ILLINOIS, WHICH.

JUSTIFIES THE ADOPTION OR M AINTENANCE OF

THE RULE AS A LOCAL RULE.

See Monarch Inc. Co. of Ohio v. Spach, 281 F.2d

401 (C.A., Fla. 1960)

pe“ s

. CIVIL RULE 22 ABRIDGES THE SUBSTANTIVE

RIGHTS OF PLAINTIFFS AND MEMBERS OF

THEIR CLASS, CONTRARY TO US.C., TITLE 28,

§2072.

THE RIGHT TO COMMUNICATE WITHOUT PRIOR

CENSORSHIP OR RESTRAIN TIS A SUBSTANTIVE

RIGHT.

VI.

CIVIL RULE 22 IS IN VIOLATION OF THE FIRST

AMENDMENT AS AN UNWARRANTED PRIOR RE-

STRAINT ON THE PLAINTIFFS’ AND THEIR AT-

~ TORNEYS’ FIRST AMENDMENT RIGHTS TO FREE-

DOM OF SPEECH, AND TO PEACEABLY ASSEMBLE

TO PETITION THE GOVERNMENT FOR REDRESS

OF THEIR GRIEVANCES.

Chase v. Robson, No. 18424, U.S. Court of *: peals,

Seventh Circuit, Order for the Issuance of a

Writ of Mandamus of May 1,°1970 (not re-

ported).

n ee. |

— 6a —

Vil.

THIS MOTION SHOULD BE GRANTED AND OP-:

PORTUNITY TO CONSULT WITH OTHER MEMBERS

OF THE PLAINTIFFS’ CLASS SHOULD BE AFFORD-

ED BEFORE THE COURT PASSES ON THE MOTION

TO STRIKE THE COMPLAINT ‘HERETOFORE -

FILED BY THE DEFENDANT HEREIN; OTHER-

WISE ANY ORDER ADVERSE TO THE COMPLAINT

ENTERED ON SAID MOTION WILL DENY THE

PLAINTIFFS AND THE OTHER MEMBERS OF

‘THEIR CLASS DUE PROCESS OF LAW, CONTRARY

TO THE FIFTH AMENDMENT. ;

Respectfully submitted,

A. Bradley Eben

Milton K. Joseph

.Charles Liebman

Raymond [. Seukoff

120 W. Madison Street

Chicago, Illinois 60602

Attorneys for Plaintiffs,

Roger Boshes, et al.

—= {2 oo

Ty THE Unrred States District Court :

For the Northern District of Illinois f

Kastern Division ‘

; _

Rocrr Bosues, et al., x

Plaintiffs, |

V- > No. 68 C 1454

GENERAL Motors Corporation, .

Defendant.

“MOTION FOR RULE 23 ORDER

Come now the plaintiffs and move the Court to. deter-

mine by order pursuant to Rule 25 of the Rules of Civil

Procedure that this action is to be maintained as a class

action, and to make such orders regarding notice to the

members and alleged members of the class. as may be ap-

propriate or necessary under the Constitution, the laws, .

and the Rules. x 3%

A. Bradley Eben :

Milton K. Joseph’

Charles Liebman

Raymond |. Seukoff -

120 W. Madison Street Q

Chicago, Illinois 60602

Attorneys for Plaintiffs, ’

_ Roger Boshes, et al.

] Bae ccien jades bieiielaseaniasisuaaetnbpess

Untrep States District Courr

Name ‘of. Presiding Judge. Honorable Judge Campbell

Cause No. 68 C 1454 aed Date Oct 6 1970

Title of Cause—Boshes vs General Motors

Brief Statement of Motion—Motion for Orders under Rule

23 & Rule 22 Order den

See eeeatiasadieunbnastenisses

ay. poe

: Motion for orders under Rule 22 and Rule 23 are denied

/s/ W.J.C.

In THE UNITED STATES District Court

For the Northern District of [linois

Eastern Division

Rocer Bosues, et al.,

| Plaintiffs, .

Ras PBL seanen <i No. 68-C 1454

GENERAL Morors Corporation,

2: Defendant. | sie

NOTICE OF APPEAL

(Filed Nov 4 1970)

NOTICE is hereby given that Roger Boshes, Esther K.

Roerig, Curtis Collum, Frank Jackson and James Tavlor,

plaintiffs herein, each in his own behalf and on behalf of

all others for whom this action is brought, hereby appeal

_to the United States Court of Appeals for the Seventh Cir-

cuit from the order entered in this action on, October 6,

1970, denying motions for successive alternative orders to

‘treat Civil Rule 22 in substantial effect as an injunction,

and to modify or dissolve such injunction, and for other

—~ 9g —

relief; or to declare said ‘Civil Rule 2 22 null and voids. or to

expunge said Civil ‘ale 22.

/s/ A. Bradley ‘Eben

, § Bradley. Eben,

. N. LaSalte St. , Chicago, Tl. 60602

/s/ ret K. Tosca «-

Milton K. Joseph. *

120 W. Madison St., Chicago, ll. 60602

/s/ Charles Liebman

Charles Liebman

120 W. Madison St., Chicago, Il]. 60602

/s/ Raymond I. Suekoff

Raymond |. Suekoff

120 W. Madison St., Chicago, Il. 60602

Attorneys for Plaintiffs-Appellants

By /s/ Milton K. Joseph

Milton K. Joseph

Ix tHe Uniren Starrs District Court

_For the Northern District of Illinois

_ Eastern Division: :

Se — 10a —-

~Rocer Bosues, et al., :

Plaintiffs,

_ | | No. 68 C 1454

GENERAL Motors CorPoraTION,

Defendant. |

NOTICE OF APPEAL

(Filed Nov. 4.1970)

NOTICE is hereby given that Roger Boshes, Esther K.

Roerig, Curtis Collum, Frank Jackson and James Taylor,

plaintiffs herein, each in his own behalf and on behalf of

all others for whom this action is brought, hereby appeal

_ to the United States Court of Appeals for the Seventh Cir-

cuit from the order entered in this action on October 6,

1970 denying the motion of plaintiffs that the court deter-

mine by order pursuant to Rule 23 of the Rules of Civil

Procedure that this action is to be maintained as a class

action, and to make such orders regarding natice to the

members and alleged members of the class as may be ap-

propriate or necessary. under the Constitution, the laws

and the rules. :

/s/ A. Bradley Eben

A. Bradley Eben,

. 1. N. LaSalle St., Chicago, Hk 60602

/s/ Milton K. Joseph

Milton K. Joseph .

120 W. Madison St., Chicago, Ill. 60602

/s/ Charles Liebman

Charles Liebman.

120 W. Madison St., Chicago, Ill. 60602

/s/ Raymond Ff. Suekoff

Raymond I. Suekoff

120 W. Madison St., Chicago, Til. 60602

Attorneys for Plaintiffs-Appellants

By /s/ Milton K. Joseph

eis ‘Milton K. Joseph

atm He om, ;

APPENDIX B

Proceedings in the U.S. Court of Appeals for. the Seventh

Circuit in consolidated appeals Nos. 18939 and 18940.

In THE UniTEp States Court or ‘APPEALS —

For the Seventh Circuit

Rocer Bosues, et al., vi ,

. "Appellants, - : ,

of | > Nos. 18939, 18940

Sos , 2

GENERAL Motors Corporation,

Appellee. 3

APPELLEE’S MOTION TO DISMISS APPEALS

AND MEMORANDUM IN SUPPORT THEREOF

_ Defendant- appellee hereby moves the Court to dismiss

these appeals because thie order appealed from simply de-

ferred any ruling by the district court with respect to plain-

tiffs- appellants’ procedural, motions until such time as the

legal-sufficiency of the complaint was determined.

This case was brought by five automobile owners, appel-

_lants here, as a purported class’action on behalf of all per- .

sons who purchased General Motors passenger cars during

the four years immediately preceding the filing of the com-

plaint, seeking to recover treble damages on the. theory

that defendant General Motors Corporation violated the

antitrust laws by “c onspiring” with itself or with or among

its internal passenger car divisions in establishing the

prices for new General Motors ears. General Motors filed a

motion to dismiss the complaint for failure to state a claim

upon which relief could be granted, and the final memo-

randum of the parties briefing that motion was filed on

August 14, 1970.

— a—.

| 7 o . |

Almost two months later, and while the motion to dismjss

was under submission, plaintiffs filed two procedural mo-

tions. In the first, they asked that: Rute 22 of the Civil

‘Rules for the Northern District of Illinois be modified, de-

_ ¢lared null and void, or held wiconstitutional. Rule 22 pro-

vides that in every class action no communication concern-

ing the action shall be made by any of the parties or their

- counsel with any potential or actual class member who is

not.a formal party to the action, until such time :as an

order may be entered by.the court approving the communi-

cation. Plaintiffs’ motion was nade apparently for the pur-

pose of allowing them to communicate with State attorneys

general without supervision of the district court. In their

second motion, plaintiffs asked the district court to proceed

to make the requisite class action determination under

Rule 23 of the Federal Rules of Civil Procedure.

Pointing out that it had not yet ruled on the pending

motion to dismiss, the district court denied plaintiffs’ mo- .

tions with leave to reinstate:

“T think I would rather finish what I am.doing now.

Your motion is denied. I will rule on what is pending

before me now, which was-fully submitted. Following

that, you have leave to reinstate your motion, tf if ap-

pears appropriate.” (Tr. at 3-4, Oct. 6, 1970).

Since the filing of plaintiffs’ notices of appeal, the: dis-

trict court granted defendant’s motion to dismiss the‘eom-

plaint insofar as it purports to state a claim based on See-

tion 1 of the Sherman Act and the so-called intra-corporate

conspiracy theory. (Order, Dec. 11, 1970; copy attached

hereto as Appendix A). The court also granted Ceneral

Motors additional time within which to answer or other-

wise plead with respect to the remaining allegations of the

complaint, which consist essentially of an amendment to

the complaint filed by plaintiffs-on August 27, 1970. In that

amendment plaintiffs allege additional a ae of the

— 13a —

antitrust laws unrelated to their initial ‘charge of intra-

corporate conspiracy. Significantly, in grarting, defen-

dant’s motion to dismiss, the court -below said:

“The motions seeking a determination that this is a

proper class action brought pursuant to Rule 23 and

other questions under Rule 23 and Local, Rule 22 will

be considered if and when the court concludes that

plaintiffs’ complaint states a claim upon which relief

can be granted.” (Order, Dee. 11, 1970).

In the light of the above, appellee General Motors moves

this Court to dismiss the appeals on the ground that no

jurisdiction exists for appellate review of an order defer-

ring. consideration of routine procedural motions or even

a denial of those motions.

ARGUMENT

PLAINTIFFS-APPELLANTS’ MOTIONS WERE NOT

DECIDED; CONSIDERATION OF THEM WAS SIM-

PLY DEFERRED.

_ Although the district court “denied” plaintiffs’ motions _

on October 6, 1970, it is clear that the court was not ruling

on the merits of the motions or reaching any decision with

respect to them. Rather, the court concluded only that it

would not rule on the motions until the preliminary ques-

tion of the sufficiency of the complaint was determined.*

The court’s subsequent order of December 11, 197 0}hca-

firms that plaintiffs’ motions had not been decided and that

final consideration of them was being deferred until the

‘remaining issues of the sufficiency of the complaint were

determined. é‘

' q :

* The district court no doubt recognized the ineffisiency

inherent in determining the class action issues or permit-

ting communication with ‘alleged class members regarding

an action the court might shortly dismiss for failure to

state a claim. ras

— l4a —

- Appeals to this Court may be had only to review a final

decision of the district court, 28 U.S.C. $1291, or to review

an order granting or denying an injunction or the dissolu-

tion of an injunction, 28 U.S.C. §1292(a).** The October |

6 order i is plainly not a final decision under Section 1291 in

any respect since it reaches neither substantive issues. my

even the merits of the motions. Morov er, the order is not

one refusing to dissolve an injunction, as plaintiffs would

apparently ‘characterize it, but rather only a deferral of.

the court’s consideration of the issues relevant ‘to either.

dissolving or refusing to dissolve any injunctive effects of

Lotal Rule 22.

In Babcock & Wilcox Co. v. Foster Wheeler Corp., 415 ~

F.2d 777 (3d Cir. 1969), the district. court, in ‘accordance

with the rules of the U.S. Patent Office, denied a request for

access to certain information until the appr opriate stage

of the proceeding was reached.* The Court of Appeals for

the Third Cirenit dismissed an appeal from the district

| court’s order because it lacked sufficient finality to be ap-

me pealable and noted that, as‘here, “the district court’s order

denying the motion recited that“its denial was without

_ prejudice to appellant’s right: to renew its motion” at an

appropriate time, so that the attempted appeal merely.

sought “a review of the propriety of district court action

which did not determine the merits of appellant’s motion

and which did not have the effect of prejudicing the appel-

| lant. ” 415 F.2d at 778.

** 98 U.S.C. §1292(b), which provides for permissive re-

view of certain interlocutory orders, is not involved here

since plaintiffs did not seck certification of the district

court’s order.

* Local Rule. 22 is analogous to the Patent Office rule in —

that it restricts certain communications until an appropri-.

ate order of the district court issues. +t

Even in the unlikely event that Local Rule 22 should be -

construed to be ans injunction, and the October 6- order

were considered to have heen a refusal to dissolve it. that

refusal would not be reviewable under §1292(a) (1 ), which

was intended to apply only to interlocutory orders tempo-

rarily granting or denying part or all of the ultimate relief

sought by the complaint.** See 9 Moore, Federal Practice

110.20[1 ],. at 233-235 (2d ed. 1970); Stricklin v. Regents

of the Univ. of Wisconsin, 420 F.2d 1259, (7th Cir. 1970).

For example, in Whittle v. Tawes, 343 F.2d 428 (4th Cir.

1965), which was an action against the governor of Mary.

and to compel him to investigate the circumstances sur-

rounding the death of the plaintiff’s brother, the defendant

moved to dismiss the complaint. An order. was then en-

tered déferring the taking of depositions by the plaintiff

‘pending disposition of the motion to.dismiss. In dismissing

an appeal from that order, the Court of Appeals for the

Fourth Circuit explained: s ee dy

“This is a routine ‘procedural step in the normal ad- -

ministration of the case and obviously not the type of

order that may be reviewed before the final determina-

tion of the case, and 28 U.S.C.A, §1292(a) (1), upon

which the appellant relies,-is inapplicable.” [bid.

See also International ‘Prods. Corp. v. Koons, 325 F.2d 403,

406 (2d Cir. 1963).

Plaintiffs-appellants hete, as in Babcock & Wilcox and

Whittle; seek to appeal a procedural ruling which reaches

neither the merits of the underlying action nor the merits

of the motions themselves. Consequently, even if the Octo-

.** Only with respect. to their, motion concerning: [Local

Rule 22 can plaintiffs possibly characterize the October 6

order as ‘one refusing to dissolye an -injunction. Section

1292(a)(1) is clearly inapplicable to the deferral of plain-

tiffs’ motion for a Rule 23 class action determination, par-

ticularly since the time for making that determination lies

within the discretion. of the district court.

— 16a —

ber 6 order were considered a “denial” rather than a de-

ferral of their motions, the appeals should be dismissed.

| Of Counsel: .

Kirkland, Ellis, Hodson,

Chaffetz & Masters

Ross L. Malone

Robert A. Nitschke

General Motors Corporation |

3044 West Grand Boulevard

Detroit, Michigan. 48202

313-556-5000 = |

Dated: January 4, 1971

Respectfully submitted,

/s/ Hammond FE. Chaffetz

Hammond E. Chaffetz

/s/ Joseph DuCoeur

Joseph DuCoeur

2900 Prudential Plaza.

Chicago, Ilinois: 60601

RA 6-2929

Attornevs for Defen-~

z dant-Appellee

General Motors

Corporation

Unitep States’ District Court

Name of Presiding Judge, Honorable Judge Campbell —

Cause No. 68 C 1454 | Date Dec 11 1970

Title of Cause—Roger sec et.al vs General Motors

Corporation

Brief Statement of ae eee

Defts. motion to dismiss the complaint is granted insofar

‘as the same is based on Sec. One of the-Sherman Act (15

U.S.C, 51) and the theory of an inter-corporate conspiracy.

a s

—17a—

Joseph E. Seagram and Son, Inc. vs Hawaiian Oke

Liquors, Ltd., 416 F. 2nd 71 (9th Cir. 1969) Cliff Food

Store Inc. vs ‘Nroger, Inc., 417 F 2nd 203 (th Cir. 1969)

In all other respects the slick to dismiss is denied. Deft.

shall answer or plead to the remaining allegations to the

complaint ‘within 20 days of this:date. The motions seek-

ing a determination that this is a proper class action

brought pursuant to Rule 25 & other questions under Rule

23 and Local Rule 22 will be considered if and when the

court concludes that plaintiffs complaint states a ‘claim.

upon which relief cain be anaes. (Draft) - .

| Isf WIC.

Ty Toe Unirep States Courr Or “APPEALS

For The Seventh Circuit

‘

Rocer Bosuks, et al.

Plaintiffs. Appellants

YV. ‘ > Nos. 18939 and 18940 °

_ GENERAL Motors Corporation,

Defendant- Appellee |

OB. JECTIONS TO MOTION OF GENERAL

MOTORS CORPORATION, DEFENDANT-

APPEL LEE, TO DISMISS THESE AP-

. PEALS

eo &

Plaintiffs-Appellants object to General Motors’ Corpora-.-

tion’s motion to dismiss these appeals. Plaintiffs-A ppel-

lants urge that the motion be denied, or perhaps prefer-

ably, that the motion be taken with the case, and consid-

ered also in connection with the Petitions for Mandamus

filed concomitantly hereto (as this Court.did in the Order :

entered by it on May 1, 1970, in No. 18424, Chase v. Rob-

— aiaahaiiiee tine iia 2

<<] a

son, Judes and No. ats) United States v. Chase.) (Not

. —— )

Jurisdiction of both of these appeals is asserted by

plaintiffs-appellants under 28 U.S.C.A. §1291, as construed

in a line of cases of which Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 545, 546; 69. S.Ct. 1221, 1225,

1226; 93 L.Ed. 1528, is an exemplar.

Jurisdiction of the appeal from the order denying the

motion to treat Local Rule 22 of the Rules of the United

States District Court for the Northern District of [linois

as an injunction and denying the motion to modify or dis-

solve the injunetion, is asserted further under 28 US.C.A.

1292(a)(1).

Il.

The questions presented on the motion -to dismiss are as

follows:

. With yomaed to Local Rule! 22 of the Rules of the

United States District Court for the Northern District

of Illinois,

1. Whether said Local Rule 29 is in substantial

effect an injunction.

2. Whether the order denying plaintiffs’ motion

to modify or dissolve such injunction to the end ‘that

plaintiffs and their counsel may communicate with

the Attorneys General of the several States (which

States and their political subdivisions are potential

and actual class members) :

a) Is an order which is appealable under 28

U.S.C.A. 1292 (a)(1) as an order refusing to dis-

solve or modify an injunction, and/or

b) Is an order which in a “practical rather

than a technical sense” is “fundamental to the

—19a —

further conduct of the ease”, “touching matters

that will not affect or be affected by, the decision

on the merits”, “the practical effect of which “will

be irreparable by any. subsequent appeal”, so as.

to be appealable under 28 U.S.C.A. $1291. -

B. With regard to Rule 23(¢)(1) of the Rules of Civil

Procedure, whether an order denying, and/or indefinitely

postponing ruling upon, a motion made in an action

brought as a class action, more than two years after the

commencement of the action, that the court determine by

order whether it is to be so maintained, and that the court

direct notice to the members of the class, is appealable

under 28 U.S.C.A. 1291, as being in,a “practical rather

than a technical sense” “fundamental to the further con-

duct of the case,” “touching matters that will not affect-or

or be affected by the decision on the mer its”) the practical

effect of which “will be irreparable by any subsequent

appeal”, and “too independent of the cause itself: to re-

quire that appellate consideration be deferred until the

whole cause is adjudicated.”

THE RULES OF COURT INVOLVED

Rule 22 of the Local Rules of the United States Distéiet

Court for the Northern District of Illinois:

“Rule 22. For Prevention of Potential Abuse of

Class Action. In every action brought as a class action

*under Rule 23 of the Federal Rules of Civil Proce-

dure, no communication concerning such action shall

be made in any way by any of the parties thereto,

or by their counsel, with any potential or actual class

member, who is not a formal party. to the action, until

such time as an Order may be entered by the Court

BEPPOY ing the communication.

“Attorneys will be required to comply. with the

‘provisions of Rule 39 of the General Rules of this -

Court.”

— 20a —

Rule. 23(c¢) (1) and (2) of the: Ryles of Civil Rian

for the United States District Courts:

“(c) Determination by Order Whether Class Ac-

tion to be Maintained; Notice; Judgment; Actions

Conducted: Partially as Class Actions.

“(1) As soon as practicable after the commence-

ment of an action. brought asa class action, the court

shall determine by order whether it is to be so main-

tained. An order under the subdivision may be con-

ditional, and may be altered or amended before the

decision on the merits.

“(2) In any class action taninbedeed under. sub-

division (b) (3), the court shall direct te the members

of the’class.the best notice practicable under the eir-

cumstances, including individual notice to all mem-

bers who can be identified through reasonable 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 fa-

vorable 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.” - |

THE NATURE OF THE CASE

On August 6, 1968 a class action in equity was brought -

by the plaintiffs, Roger Boshes and four other persons

who purchased General Motors passenger automobiles as

_consumers, on behalf. of all such purchasers within the’

four preceding years and on behalf of subsequent pur- .

chasers, to recover money damages and costs from Gen-

eral Motors Corporation, for violations of Sections 1 and

2 of the Sherman Act (15 U.S.C.A. §41 and 2) and See-

tion 7 of the Clayton Act (15 U.S.C.A. §18), and for such

other relief as might be available to the, class. The class

consists of some millions of persons.

The claim of liability in the original complaint for dam-

ages under Section 1 of the’ Sherman Act, is predicated

— 21a —

upon allegations that the Buick, Cadillac, Chevrolet, Olds-

mobile and Pontiac Divisions of General Motors were

originally independent corporations which had combined

with each other into General Motors Corporation and were .

substantially independent business entities (see General

_ Motors Corp v. Washington, 377. U.S. 436, 84 S.Ct. 1564),

that they were in competition with each other in the mar-

ket for American style cars, and that they had combined

to fix prices; as a result of which General Motors charged

higher prices to members of plaintiffs’ class than it would

have if there had been no combination to fix prices. (The

question of whether a “division” is similar to a subsidiary

corporation.with regard to liability of the parent for a

combination or conspiracy with the parent company has

been presented to and noted by the Court, but not yet

passed on by that Court. Poller v.C.B.S., 368 U.S. 464,

469; 82-S.Ct. 486, 489 (Footnote 4).,(See.in this connec-

tion the brief filed in the Distriet Court, Record, 150).

The claim of lability for damages under Section 2 of

the Sherman Act.is based upon allegations that during

the period in question, General Motors Corporation as a

combination of the original 5 companies had monopoly -

power in the relevant market; that its profits were so

great that it could reduce prices to a point where all its

competitors could be driven from the relevant market

and yet it could still. make a profit; that for the same rea-

son it had the power to prevent new competitors from en-

tering the relevant market; that it had attained and main-

tained this power by senibinatieee conspiracy - fix prices

and other unlawful acts.

The precise claims to other relief were not spelled out

specifically in the pleadings, but in the briefs attention of

‘the court was directed to the fact that a decree of dives-

titure under Section 7 of the Clayton Act could be appro-

priate under Dupont 1,.353 U.S. 598, 77 S.Ct. 880; Cas-

oo)

— 99.

— £Za—

cade Natural Gas Co. v. El Paso Natural Gas Co., 87 S.Ct.

932, 937, 386 U.S. 129, 136. (See Record 154).

On October 6, 1970, Amendment No. 1 to the Complaint

was filed by leave of court (Rec. 236-318). This amend-

ment spelled out additional claimed violations of the anti-

trust laws arising out of the creation and maintenance

by General Motors of ,.hundreds of retail-dealership sub-

sidiary corporations with which General Motors combined

and conspired to fix retail prices, ete., which violations —

would justify granting relief by way of damages, and e.g.,

divestiture and injunction.

THE COURSE OF PROCEEDING.

Since the’ filing. of the complaint on. August 6, 1968,

numerous orders of extension of time to file a responsive

pleading were entered from time to time pursuant to stipu-

lation. Ultimately, on March 23, 1970—more than 20

months, after the complaint was filed—General Motors

filed a motion to dismiss the cémplaint. (Ree. 126-127).

The issues were extensively briefed by the plaintiffs

and defendant, and the last brief was filed on August

14, 1970 (Ree. 209-213). (The ‘trial judge held the mo-

tiori under advisement and did not rule on it until De-

_ cember 14, 1970 after these appeals were taken.) *

On September 28, 1970, plaintiffs filed two motions:

First, a motion that Local Rule 22 of the District Court

be eonstrned as an injunction, and to modify or dissolve

the injunction so that plaintiffs might enter into coimmuni- .

eation concerning this action with the Attorneys General

of ‘the States (the States being actual or potential class

members), or in the alternative, to declare Local Rule 22:

void and/or expunge it as being in violation of the First

Amendment and the Fifth Amendment, and beyond the

rule-making powers‘of the District Court (Ree. 228-229).

a — 23a —

Second; a motion for the District Court to determine by

order pursuant to Rule 23 of the Rules of Civil Procedure

that this action is to be maintained as a class action, and to

provide for appropriate notice to the alleged members of

the class (Ree. 226).

Both motions were denied on October 6, 1970. (The tran-

script of the hearing shows that the District Judge stated

that they might be renewed at an unspecified later date

(Transcript October 6, 1970, pp..3-4). This does not appear

in the order of denial (Ree. 235). :

On November 4, 1970, plaintiffs, filed Notices of Appeal

to this court from the order of October 6, 1970 denying

. plaintiffs’ motions with regard to Local Rule 22, and Rule

of Civil Procedure 23. |

General Motors has obtained an extension of time to—

answer or plead to the “remaining allegations of the‘ com-

plaint” until March 3, 1971 and has as yet filed no response.

On October 6, 1970 the plaintiffs were granted leave to

and did file “Amendment No. 1 to the Complaint” (Ree.

‘ 318, 236-315).

On December 14, 1970 (more than 2 months: later), the

District Court entered an order (Appellee’s Motion to Dis-

miss in this Court, Appendix A) that:

a) Defendant’s motion to dismiss the complaint was

“granted insofar. as it is based on Section 1 of the

papeelane Act and the theory of intra-corporate con-

spiracy.’ |

b) In all other respects the motion to dismiss | was

denied.

c) “Defendant shall answer or plead to the remain-

ing allegations of the complaint.”

d) “The motions seeking a determination that this

is a proper class action brought pursuant to Rule 23

and other questions under Local Rule 22 will be con-

| — 24a —

7 sidered if and when the court concludes that plaintiff’s

complaint states a claim upon which relief can be.

granted. si

THE DISPOSITION IN THE COURT BELOW.

stand.

On October. 6, 1970, the District Court entered the fol-

lowing categorie order (Ree. 235):

- “Motions for orders under Rule 22 and Rule .23 ‘are.

denied.” °

On November 4, 1970, plaintiffs’ Notices of pone to

this Court.were filed with the District Court Clerk.

_, (Plaintiffs have. not renewed the motions for orders

under Rule 22 and Rule 23.) ae

‘ On December 14, 1970, more than two months after the

entry of the order of denial and more than a month after

~ the filing of the Notices of Appeal, the Distr ict Court sua

sponte entered the following orders:

“The motions seeking a determination that this is

a proper class action brought pursuant to Rule 23 and

other’ questions under Rule 23 and Local Rule 22 will

-be considered if and when ‘the Court concludes that

plaintiffs’ complaint..states a ‘claim upen which relief

can be granted.” (Apes Motion to Dismisg..Ap-

peals, p. 7).

But these motions were no longer Yefore the District

Court! The motions had been denied; the denials had. been

appealed from; and jurisdiction with relation to the mo-

" . tions liad been transferred to this Court of Appeals by the

filing of the Notices of — and the denials appealed

from still stand,

~The disposition in the court below is difficult to under- ~

° ie

— 25a —"

| BRIEF |

PRELIMINARY REMARKS)

by This suit is perhaps one of the three most important —

antitrust cases. (the other two being Standard Oil Co. of

New Jersey v. U.S., 31 S.Ct. 502, 221 U.S. 1; United States

v. American een Co., 31 S.Ct. 632;.221 U. S. 106.)

It is a class suit brought by five consumer- purchasers,

asking for damages for the class in quite large amounts

and for divestiture, injunction and other equitable relief.

It presents many quéstions of first impression. Plaintiffs

are pitted against the $23 Billion General Motors colossus.

The suit presents many serious problems of policy and

strategy. Should all possible causes of action be searched

out and asserted, or should the suit be pressed only on

those causes of action which can be disposed of most ex-

peditiously? There are millions of persons who.are mem-

bers of thé consumer-class. Many of them have already

died; some millions of them wiil certainly be dead before .

this suit ends if the case takes- the conventional 10-to-25 .

year course (see,‘e.g. Gottesman v. General Motors Corp.,

et al., 414 F.2d 965 and still pending: ‘Gottesman is based

on DuPont I, 77 S.Ct. 872, 353 U.S. 586, which had been

instituted 1 in 1949..See also Cascade National Gas Corpora-

tion v. El Paso Natural Gas Company, 386.U.S. 129, 87 S.Ct.

932, commenced in 1957 and still pending in June, 1969.

Utah Public Service Commission v. El Paso Natural Gas . | ‘

Co., 89 S.Ct. 1860, 395 U.S. 464. See also Perkins v. Stan-

dard Oil Co. of Cal., 89 S.Ct. 1871, 1875, 395 US. 642, 650, .

commenced in 1959, concluded in 1969).

The amount which might be,recovered for each Pree ey

of the class (or his estate) is compar atively not large, and

‘has been and will be depreciated by- the general inflation.

Should plaintiffs took for a bird in.the hand rather than -

for two in the bush? “Justice delayed is justice denied.”

ter SSF ade ed bs StueL

— 96a —

Questions of limitations in class suits exist, and, have

not yet been authorifatively settled. Did the filing of the

suit toll limitations ag to the members of the class? If the

.suit is dismissed witbbut notice Yo them, and,they have no

: knowledge of the dishissal, what are their rights?

It is with regaheto the foregoing matters among others,

that communication and consultation with representative

members of the class is desired.: The most representative

members are the States, each of whom (together with its

political subdivisions ) is a large consumer ‘purchaser of |

automobiles from/General Motors.

The object of these appeals and the mandamuses being

filed concomitantly with them is to enable plaintiffs as

“private attorrieys general”, as “representatives of the

public interest” (Flast v. Cohen, 88 S.Ct. 1942, 1963, 392

U.S. 83, 120), as well as of their class, to obtain First

Amendment rights of communication, assembly and peti-

tion, and the Fifth Amendment. right of _ sia ess of law, .

for tliemselves and their class.

POINTS AND AUTHORITIES

| A. | .

WITH REGARD TO LOCAL RULE 22

aunts I.

Local Rule 22 is in substantial effect an injunction.

United States v. Cities Servicé Co., 410 F. 2d 662,

a 663, footnote 1 :

Hotel & Restaurant Employees and Bartenders’

Int'l Union ete.\v. Del Valle, 328 F. 2d 885

‘\ McCoy v. Leuisiie State Board wht Education,

345 F. 24 720

Independent Petroleum Workers of New Jersey

v. — Standard Oil Co., 235 F. . 2d 401

— 27a —_

‘TI.

“The ‘order of the District Court dent ying plaintiffs’ mo-

tion that Civil Rule 22..be treated as an injunction, and

denying plaintiffs’ motion that the District Court modify

or dissolve” stich injunction so as to declare and establish

.. the right ‘of and to permit and ‘\uthorize plaintiffs and/or —

their counsel, to make communications concerning this ’ac-

tion with certain potential or actual class members, to-wit,

the several states of the United States, through their re-

spective Attorneys General, was an order denying a motion

to dissolve or modify an injunction, and hence is ——

under 28 U.S.€. 1292 (a) (1).

Hyde Construction Co. v. ispenring ¢ Co., 388 P. 2d

501 ° |

. Rivers vy, Miller, 112 F. 2d 439

American Grain Sep. Co. v. Twin City Sep. Co.;

202 F. 2d

‘See: |

A.-€-E. Plastick Pak Co.-v. Monsanto Company,

396° F. 2d. 710

H. W..Caldwell & Son Ca., ie v. U. 8. etc., 407

F. 2d 21 : 33

‘ ; / EGE.

The order is likewise appealable under 28 U.S.C. 1291 as |

an order which in a practical rather than. a. technical sense —

is fundamental to the further conduct of the case, touching

matters that will not affect or be affected by, the decision

on the merits, and the practical effect of w hich will be ir-

reparable by any subsequent appeal.

Gillespie y. United. States Steel Corporation, 85

S. Ct. 308, 379 U.S. 148

Cohen v. Beneficial Industrial Loan Corporation,

69 S. Ct. 1221, 337 U.S. 541

— Chabot v. National S@curities and Research Cor-

poration, 290 F. 2d 657 °

And see: .

United States v. General iioes Corporation, 323

U.S. 373, 377, 65 8. Ct, 357, 359

IV,

.. The invitations to pinineidis. by ‘the. Distriet Court. to

renew at some later date their motions to modify or dis-

solve the Local Rule 22 injunction could not and did not

deprive plaintiffs of their right to appeal. . 4

~ Pan .American World Airways, Inc. vy. «Flight

_ Engineers International Assn., etc., 306 F.. 2d

— 840 wAbetec

National Mediation Board ‘y. Air Pilots Associa-

tion, etc., 323 F.2d 305 :

Missouri-Kansas-Texas R. Co. v. Randolph, 182

F. 2d 886

David v. Hayden, 238 F. 734 .

Schainman vy. Brainard, 8 F. 2d 11

Western Union Telegraph Co. vy. United States &

Mexican Trust Co., 221 -F. 545 |

‘ Boeing Co. Ve International U niOn, ete. 370 F. 2d

969

WITH REGARD TO THE DENIAL OF PLAINTIFFS

MOTION FOR A RULE 23 DETERMINATION BY

ORDER WHETHER CLASS-.ACTION TO BIE MAIN--

TAINED; AND FOR NOTICK.

A. Rule 23 determination as to. whether the action

should be maintained as a class action should be made at

an early stage of the case, )

sg oot

Philadelphia Electric Co. v. Anaconda American !

Brass Co., 42. F.R.D, 324

Hardy v. U. S.-Steel Corp., 289 PF. Supp. 200

‘Weissman v. M. C. A. Inc., 45 F.R.D. 258

Clark vy. American Marine Corp., 297 F. Supp.

"1305 re

See:

Eisen v. Carlisle & Jacquetin, 391 F. 2d 555, 564-

965

VI.

In any event, a determination as to whether the action

‘should be. maintained as a class action, should be made

before the District Court rules that the complaint is insuffi-

- cient in any respect, since thie rights of the absent members

of the-elass are thereby affected. | .

Clark. vy. American Marine Corps., 297 F. Supp.

1505, 1306

Hisen vy. Carlisle & Jacquelin, 391 F. 2d 38, 564-

205 :

Cranston v. Freeman, 290 F. Supp. 785, 787-788

VII.

The order refusing to make the determination under

Rule 23 as to whether the action is to be maintained ‘as a

class action, and the refusal to give notice, combined with

the inhibitions of Local Rule 22, and with the fact that the

cause of action under ‘Section. 1 of the Sherman Act has

been held not to exist, is an order which is appealable under

28 U.S.C. 1291, becanse in a practical rather than a techni-

eal sense it is fundamental to the further conduct of the

case, touching matters that will not. affect or be affected

by, the decision on the merits, and the practical effect of

which will be irreparable by any subsequent appeal.

Gillespie v. United States Steel Corporation, 85

S: Ct. 308, 376 U.S.

= Ce ee eee

= —————

‘

— 30a —

Cohen v. Beneficial Industrial Loan Corporation,

66 S. Ct. 1221, 337 U.S. 541

Chabot v. National Securities and Research .Cor-

poration, 292 F. 2d 657

aad ARGUMENT

The order of November 6, 1970, denying plaintiffs’ mo-

tion compelled by Local Rule 22, for leave to communicate

with the States Attorneys General, was in substantion ef-

fect an interlocutory order refusing to dissolve or modify

an injunction.

Local Rule 22 is in substantial effect a temporary in-

junction. It is no different in any way, for example, from

’ the usual and customary injunction entered in a labor case

against communication by picketing, or in a covenant-

against-competition case against communication with cus-

tomers. It is a sweeping “general injunction”, comparable

with the “general warrants” which-James Oatis success-

‘fully resisted. It is a part of the proceedings “in every

action brought as a class action under Rule 23 of Federal

Rules of Civil Procedure.”

The order denying plaintiffs’ motion under Local Rule

22 is an interlocutory order refusing to modify or dissolve

an injunction. In determining the existence of an inter-

locutory order, this court will look to its substantial etheet

rather than its terminology.

United States v. Cities Service Co., 410 F. 2a 662,

_ 663, Footriote 1.

- Hotel etc. Union v. Del Valle, 328 F. 2d 885

~ McCoy v. Louisiana State Board of Education,

345 F. 2d 720

— 3la —

Even if Local Rule. 22 were claimed to be a temporary

_ restraining order, it became tantamount to an- injunction

after 20 days (National Mediation Board v. Air Line Pilots

Association, Intern., 323 F. 2d 305; Pan-American World

Airways, Inc. v. ‘Flight Satara International Associa-

tion, etc., 306 F. 2d 840), and the interlocutory order deny-

ing for the time being the motion to dissolve or modify it

became appealable as an interloéutory order tefusing to

dissolve or modify an | injunction, under 28 USC. 1292

(a) (1). :

(In United States vy. Chase, No. 18417, not reported, in

this Court in an analogous situation. #lected not to pass on

the question of appealability, preferring ‘to award manda-

mus. See order of May 1, 1970 in No. 18417, p. 5).

Bhs

The order denying plaintiffs leave to communicate with

the States Attorneys General i is appealable meer 28 U.S.C.

$1291.

‘There is a line of eases, of which. Gille spie \ r - United

States Steel Corporation, 85 S.Ct. 308, 379 U.S. 148° ap-

pears to be the latest, which allows an appeal under 28

U.S.C. §1291 from an order which is not final in the sense

that the order is bieog necessarily the mast order possible to

be ‘made in the case.’

Certain tests have been laid down in ‘hens cases:

l. Is the order one which in a “practical rather than a

technical sense” is “fundamental to the further conduct of

the case?” Sh hee

We believe that the order which denies us leave to com-

munieate with the State ere General is such an

order.

Plaintiffs are . individual automobile consumer-pur- *

chasers, suing on behalf of all consumer purchasers, They

— 32a — ‘

are pitted ag gainst General Motors, a $23 billion dollar colos-

sus. The resources of General Motors for defense are prac-.

tieally limitless. General Motors has persuaded the Dis-

trict Court to rule that no cause of action exists under See-

tion 1 of the Sherman Act. This ruling directly affects all

other members of the class (although they,-have not re-

ceived notice or hearing). This might work a great injus-

‘tice on them, since the claims for recovery for their bene-

- fit have been effectively cut off so long as the District

Judge’s ruling stands (Gillespie, 85S: Ct. 308, 311, 379

U.S. 148, 153). ”

Plaintiffs desire to consult with the State Attorneys Gen-

eral concerning the posture of the ease, and the tacties and

strategy to be followed. Such consultation_in a “practical

‘rather than a technical scnse” is “ftindamental to the fur-

ther conduct of the case.” The States themselves are large

consumer-purchasers, as are their municipalities; and are

important members of the consumer-purchaser class. While

no single State, and perhaps not ail the States in eonjune-

tion, can or will marshall resources. comparable to those

which General Motors can, and will if so advised, pour into

this struggle, thre will be at least a comparability of the

litigious power which simply does not exist in the present

remarkable and hitherto unheard-of situation where plain-.

tiffs are totally barred from communicating concerning this

ease with probably more than half of the adults of the’

‘Nation! 7

There are problems of the Statute of Limitations. There

are problems of selectivity of causes of action. It is note-

worthy that the DuPont-General Motors Clayton Act liti-

gation, bitterly fought, which commenced in 1949, and which

resulted in civil litigation for damages in a.derivative’stock-

holders suit, is not yet terminated! We should like to con-

sult with the Attorneys General of the States for the pur-

‘ | — 33a —

pose of developing a strategy which will avoid a. possible

twenty-year litigation during which millions of our’ ¢on-

sumer-class will have died. Pees

(It should be noted that Rule 22 in no way inhibits a

defendant from communicating with whomsoever it chooses,

We are gagged; General Motors, directly.or indirectly, can

communicate with anybody!)

2. Will the “practical effect” of denial of an aanial ¢ at -

this time “be irreparable by a subsequent appeal.”

The -District Court has already ruled adversely to thie

plaintiffs’ class on the “divisions” claim ‘under Seetion 1

of the Sherman Act. Would it be sound ‘trategy for plain-

tiffs, at this stage of the case to ask the trial judge for a

statement under 28 U.S.C. 1292 (b) and if granted take an —

immediate appeal on that issue? Plaintiffs would. like to

consult with strong fellow class-inembers on this issue.

Prior to the adoption of Local Rule 22 they could have done

so. And the consultation must be made now, not before

further rulings on the sufficiency of the class’ claims are

made. General Motors is free to consult with anyone; but

the plaintiffs are not. If-plaintiffs must wait until the final

order in the case is’ made before they may consult, the. °

practical effect of denial of appeal at this time will cer-

‘tainly be irreparable by a subsequent appeal. o ¥

_ 3. Is the order sought to be appealed from collateral to

the principal litigation because touching matters that will

not affect or be affected by decision of the merits of the

case. - a. -

That this is so, is so clear as hardly to require argument.

How can .our communication with the States Attorneys.

General affect or he affected by a decision of the merits of

the case? 7

— 34a — .

4. Does a lalancine of “the inconvenience and costs of

precemeal review on the one hand and the danger of deny-

ing justice by delay on the other,” favor the allowance of an

appeal? ;

As the Supreme Goi pointed out in Gillespie (85 8S. Ct:.

311; 379 U.S. 152),ssuch a balancing is‘not always easy. We

have previously pointed out some of the dangers of denying

justice by delay, in this case. There are additional con-

siderations which we respectfully urge upon the Court.

Local Rule 22 is an innovation in the law; this Court, in

its supervisory capacity over the District, Court, ought to

formulate guidelines concérning the rights of parties to

communicate with members of their class in Rule 23 suits,

which are hecoming a continually increasing portion of the

business of the Federal Courts. See Schlagenhauf. v.

Holder, 85 S. Ct. 234, 239, 379 U.S. 104, 112. Likewise, the

preferred First. Amendment rights of communication anc

of assembly to petition the government for redress of

grievances; and the Fiftth Amendment, right of due process

to the absent members of the class are involved. We re-

spectfully submit that in this ease at least, the balancing

should weight in favor of allowing the appeal.

The order of November 6, 1970 denying plaintiffs’ mo-

tion for a determination by the District Court pursuant

to Rule 23 of the Rules of Civil Procedure -that this ac-

tion is to be maintained as a class. action, and for ap-

propriate notice to members of the class, is likewise ap-

pealable under 288 U.S.C.A. § 1291.

This proposition is, perhaps. more diffienlt of demon-:

stration than the appealability of the Jocal Rule 22 or-

‘der. It may-be that this court will feel that mandamus

is a more appropriate remedy. (We direct this court’s

attention to the praetice in the Second Circuit, where

- — Se —

the Court of Appeals holds itself free to consider an ap-

peal as.a petition for mandamus or, prohibition, Inter-

national Prods. Corp. v. Koons, 32 F.2d 403,° 407).

Yet, applying the tests for collateral appealability °

whieh we have previously set. forth, the Rule 23. order

would seem to meef. their requirements:

1. Can.there be any doubt that the order in a prac-

tical rather than a technical-sense is fundamental to the

further conduct of .the case?

rs Plaintiffs’ wish to obtain at this time, for them-

selves and their class, the benefit of their. First Amend-

ment rights of communication and of assembly to peti-—

tion the government for redress of their grievances; and ~

-to obtain for the members of their class, now, their due |

process rights of notice and hearings. The availability -

and exercise of these rights, now, at this stage of the .

proceedings is of the utmost importance. Will not the

practical effect of denial: of an appeal at this time be .ir-

~Treparable by a subsequent appeal, for reasens previ-

ously -stated?

3. Is it not true that the order sought to be appealed

from is collateral to the principal litigation because ©

touching matters that will not affect or be affected by

decision of -the merits of the case? (The merits are,

whether General Motors has or -has not violated the °

anti-trust laws so as to have given to the plaintiffs’ class

claims upon which relief might be granted. Whether ar

not the case should for the time being proceed as a class

action is a collateral matter to the merits, the class ac-

tion involving essentially a question of convenience.)

4. If an appeal is available under ‘Local Rule 22 or-

der, would not the balancing of considerations result in

the conclusion that in the interests of justice it would be

better all around to consider inthe same proceeding the

propriety of the District Court’s refusal to determine -

a Me:

whether the action should proceed as a class action,’ and

what notice should be given?

We, therefore, respectfully urge that the motion to

dismiss be denied, or be taken with the consolidated

ease, and with the petitions for mandamus or prohibition

that are being filed: as alternative procedures for relief. ..

Respectfully submitted, |

A. Braptey EsBen

RaymMonp I. SuEKOFF

CHARLES: LIEBMAN

Mitton K: JOSEPH

Se . By /s/ Charles Liebman

Charles Liebman, one of the attor-

neys for Plaintiffs-Appellants

oe 120 W. Madison, Suite 800

‘ Chicago, Ill. 60602

St. 2-1776 ae :

— 37a —

UNITED STATES COURT OF APPEALS

For. the Seventh Cireuit

Chicago, Illinois 60604 .

Friday, February 12, 1971

ae : Before

' Hon. Orro Kerner, Circuit

Judge

Hon. Wingur F. Pew, Jr., Cireuit J udge

Hon. Joun Pavi Stevens, Cireuit J udge

Rocer Bosuess, et al., \ 4

Plaintiffs-Appellants

Vv. ok:

No. 18939, 18940

GENERAL Motors: Corporation,

Defendant-Appellée |

‘App eal s from the

. United States Dis-

trict Court for ‘the

r Northern. District

_ of Tilinois, Eastern

Division.

This matter’ comes before the Court ‘on the defendant-

-appellee’s motion to dismiss the above_entitled appeals, and

the objections of plaintiffs-appeHlants to said motion.

‘On consideration whereof, IT IS ORDERED and ad-

judged by this Court that the abov

e entitled appeals be,

and the same are hereby DISMISSED at the cost of plain-

tiffs-appellants on motion of defendant-appellee.. ;

| — 38a —

Nos. 18939 and 18940. —

In THe Unitep States Court Or APPEALS ©

For The Sey enth Cireuit

RocEr hue et al., - ) Appeals from the

Plaintiffs-Appellants Unitéd States Dis-

.. : trict Court for the

: ‘3 Northern District

GENERAL Motors CoRPorRATION, of Illinois, Eastern

Defendant- -Appellee | Division. 7

(Filed February 25,-1971)

PETITION FOR REHEARING, OR, IN- THE ALTER- .

NATIVE TO VACATE THE ORDER OF DISMISSAL,

AND TO FILE. A-NEW ORDER STATING THE REA-

SONS FOR DISMIISSAL OF THE?APPEALS

The plaintiffs-appellants, with the utmost deference,

most respectfully petition this Court either to grant a re-

hearing herein, or to vacate the order of dismissal hereto-

fore entered herein, and to file a new order stating the

reasons for dismissal of the appeals. |

These plaintiffs- appellants most respectfully suggest

that the lack of any reported litigation at this time relat-

ing to Local Rule 22 and to the question of the appeal-

-ability of orders of refusals to determine whether actions

brought as class suits shall be nraintained as class suits

under Rule of Civil Procedure 23 and notice given to the

‘members of the alleged élass, are cogent reasons for this

Court to discuss these questions in an opinion in these ap-

peals, in order to afford sorely needed guidance to the Dis-

— 39a —

triet Courts and to the Bar. j in this era of proliferating

class actions. '

Respectfully submitted,

os 7 . A. Braptey Epen

Bice ee oad ee : ‘ Raymonp I. Surexorr

| Mitton K. Joseru

CuarLes LieBMAN

By ak Charles Liebman

Attorneys for Plaintiffs-Appellants

—

UNITED STATES COURT OF APPEALS -

For the Seventh Circuit

Chicago, Tlinois 60604

Ww ednesday, March 10, 1971

: ices

‘hen: Orro Kerner, Circuit Judge

Ion. Jour Pat. STEVENS, Circuit Judge

Hon... civiondisbeitinsiidaieebsssidguseedahantaia: ake s ipcnakaes

Rocer Bosuss, et al. rk a ppeals from the

Plaintiffs-Appellants | | 77 nited States Dis-

| Bk Seance | trict Court for the

No. 18939, 18940 he eee a Northern - District

’ GENERAL Morors Corporation, of Ulinois, Kastern

Defendant- Appellee ) Division.

IT 1 Is HEREBY ORDERED by the Court that the peti-

tion of plaintiffs-Appellants for rehearing, or, in the al-

ternative to vacate the order of dismissal, and to file a new

order stating the reasons for dismissal of the appeals, be

and the same is hereby denied. :

Appendix Ri os

Proceedings in the U, S. Court of Appeals for the Seventh

Cireuit in original Mandamus Action entitled Roger

Boshes, et al. y. Honorable William uv. Campbell, omnee,

ete., No. 71-1104. ©

= te a

. APPENDIX C . oe

Ixy. Toe Unirep States Court Or ApPEALs

For The Seventh Cireuit

_RoGer BosuEs, et al.

Petitioners,

Honorasty Wiryuiam J. CampBeLt, ( No. 71-1104

Judge, United States District Court .

For The Northern. District of Th-

nols, . oh ee J

z ! ‘(Filed Feb 5, 1971)

ORIGINAL PETITION: FOR WRITS OF MANDAMUS

AND PROHIBITION WITH RELATION: TO AN OR-

DER OF DENIAL TO PE TITIONERS FOR L AV Kk TO

COMMUNICATE WITH THE ATTORNEYS GENERAL

OF THE SEVERAL STATES, WHICH ORDER HAS

_. BEEN APPEALED FROM TO THIS COURT IN

NOS. 18939 and 18940

Now comes Roger Boshes, Msther KX. Roerig, Curtis

Collum, Frank Jackson and James Taylor by their attor-

neys, A. Bradley Eben, Milton K. Joseph, Charles Liebman

and Raymond |. Suekoff, and petition this court:

_ -71.. To issue a Writ of Mandamus directing the Respon-

dent, the Honorable Williain J. Campbell, Judge, United

States District Court for the Northern District of Tlinois

to vacate his order of November 6, 1970, entered in the

ease of Roger Boshes, et al. v. General Motors Corporation,

No. 680-1454, denying the motion of these petitioners and |

plaintiffs in said case.for leave to communicate with the

Attorneys General of the several States, which order with-

out according the petitioners and their class due process

of law impermissibly deprives these petitioners and their

counsel: of their First Amendment rights of freedom of

ie.

speech, and to peaceably assemble and to petition the

government for a redress of their grievances.

2. ‘To issue a rule upon the Bhcbondent. the Honorable

William J. Campbell, to show cause wh¥-a writ of prohihi-

tion should not issue to prevent him from enforcing the

terms and conditions of Civil Rule .22 of District Court

of the Northern District of: Illinois by way of contempt

“proceedings or otherwise, if these petitioners and/or their

counsel should communicate ae

(a) w ith the several States, who are potential or actual

class members, through their Rempective Attorneys General:

and/or F .

(b) With other potential or actual class members,

3 To issue its order staying proceedings i in the District

Court in said case No. 68C-1454, until this Court has dis-

posed of this petition for a writ of mandamus and prohibi-

tion. .

STAT MENT OF PACTS

The case helow was brought on August 6; 1968, and is

pending as an asserted. class action, by the five plaintiffs

as €onsumer-purchasers of General Motors automobiles,

on behalf of all consumer-purchasers .of General Motors

automobiles within the four-year -limitations period (15

ULS.CLA. $15b) as a class, to recover damages for violation

. by General Wetare Corporation of Sections land 2 of the

Sherman Act and Section 7 of the Clayton Act.

The plaintiffs are ordinary, average individuals of aver-

age means and resources. It is the policy of the law that

they are “private attorneys general”, acting in the public

interest, as well as privately. Flast v.-Colen, 88 S.Ct. 1942.

1957, 1963, 392 U.S. 83, 109, 120; Scripps-How ard Radio

Pe icscres Communications Commission, 316 U.S. 4. 14:

62 S.Ct. 875, 882.

— 42a —

The book value of General Motors’ net worth is approxi-

mately $10 Billion. Its working capital is over $4 Billion. -

The present market value of its common: stock is over $23

Billion. = * | ‘ 7 ,

‘The filing of the suit below as a class suit tolled the four-

vear statute of limitations as to the members of the class.

“Union Carbide vy. Nisley, 300 F.2d 561. Esplin v. llinchi,

402 F.2d 94, cert. den. 89 S.Ct. 1194, 394 ULS. 928, 22 L.led.

_ 2nd 459. There seems to be no, statutory or case law as

to the effect on the class with regard to limitations of a

determination by the court below (a) that there is no cause

_ of action for damages, (b) that the case may not be main-

tained as a class action. .

Counsel for ‘plaintiffs desire to consult with other: re-

sponsible members of the class with regard to the preser-

vation’ of the rights of the class in the proceeding below.

They: are prohibited.from doing so under pain of contempt

and professional discipline by ‘Local Rule 22 of the court

helow which reads as follows:

For Prevention of Potential Abuse of Class -Action.-

In every action brought as a class action under Rule

23 of the Federal Rules of Civil Procedure; no com-

munication concerning such action shall be made in

any way by any of the parties thereto, or by their —

counsel, with any potential or actual class member,

-who is not a formal party to the action, until such

time as an Order may be entered by the Court approv-

ing the communication, .

On September 28, 1970, plaintiffs made ‘application to

the court below for leave to communicate with the Attor-

nevs Genéral of the several States*as actual or potential

class members, as follows: .

ns ‘

° . — 43a — . , |

MOTIONS FOR. SUCCESSIVE ALTERNATIVE

~ ORDERS. TO TREAT CIVIL RUL I, 22 IN SUBSTAN-

TIAL EFFECT AS AN INJU N¢ ‘TION, ANT TO MODI-

FY OR DISSOLVE SUCH INJU NCTION, AND FOR .

OTHER RELIEF; OR TO DECLARE SAID CIVIL

RULE 22 NULL AND VOID: OR TO KXPUNGE SAID

CIV IL RU LE Uae

Come now plaintiffs and move the Court in suecessive

_ alternative order:

First, To construe and. treat Ci ivil Rule 22 of this Court

adopted April 15, 1970, insofar as applied to this case as

being in substantial effect an, injunction, and to modify and

dissolve such injunction so‘as to declare and establish

the right of, and to permit and authorize plaintiffs and/or

their counsel to make communications concerning this ac-

tion with certain potential or actual class members, to-wit :

the several States of the United States. through their re-

spective Attorneys General, who are not tormal parties to

this action, without subjecting such communications to

prior censorship by the Court, and Without. subjecting

such communications to the prior entry by the Court of

any order approving such communications: and without

subjecting such communications to stbsequent disclosures

to the Court and/or counsel, except for good cause shown,

: or (if that relief be denied.)

Second, To declare said Civil Rule 22 null and void; for

violation of the First Amendment to the U.S. C onstitution

and as being beyond the rule-making pow ers of this Court |

or (if that relief be denied,)

Third, To expimge Civil Rule 22 of this Court for ia.

tion of the First Amendment to the U.S. Constitution and. .

as heing beyond the rule- making powers of this Court:,

On October 6, 1970, the Respondent entered the sono

ing order:

{AA TT

dent stated:

oe 449g — :

Motion for orders under Rule 22 and Rule 23 denied

In the colloquy in connection with the order the Respon-

- “Your motion is denied. I will rule on what is pend-

ing before me now, which was fully submitted. Follow-

‘ ing that, vou have leave to reinstate vour motion, if it

appears appropriate.”

Subsequently,, on. December 11, 1970, the Respondent

-. entered an order. dismissing the complaint insofar as it

- purports to state a claim based on Section 1 of the Sher-

man, Act and the theory of an intra-corporate conspiracy ;

and in-the ‘same order stated: aie °

“The motion ... seeking a determination . .. under’

. Local Rule 22 will be considered if ‘and when the.

Court concludes that plaintiffs’ complaint states a

elaim upon which relief can be granted.”

It would’ be totally irrational for plaintiffs to pursue

their claims except in a class action. ' ;

They: will not pursue their claims as eee but

only as members of the class. |

Plaintiffs then appealed to: this ah from the order

of denial, which appeal is now pending (Nos. 18939 and

19840, ‘Consolidated). | \ .

It being uncertain whether appeal or mandamus pro-

hibition is the proper remedy, plaintiffs below now bring

this petition for mandamus and prohibition. This proceed-

ing is a companion proceeding to Appeals Nos. 18939 and

_ 18940, and ‘petitioners ask that it be consolidated with

‘these said appeals, or heard together with them.

SOM aOR AAR, ‘3 Pe Met FoieS ae

— 45a —

REASONS WHY THE WRITS SHOULD ISSUE

We would like to be able to say that Local Rule 22 is &

novelty in jurisprudence, but it is analogous to the order

entered by the Honorable Edwin A. Robson, Judge, in

U.S. v. Chase (No. 18417 on appeal in this court), on Febru-

ary 24, 1970,'which this Court ordered vacated in a man-

damus prohibition proceeding in No. 18424, Chase v. Rob-

son. (Order, May 1, 1970.) .

Local Rule 22 is afflicted with all the infirmities noted

by this Court in Chase v. Robson, No. 18424, supra.

It was entered sua sponte by the .District Court.

It is a limitation on Petitioners’ and their attorneys exer-

cise of First Amendment rights of freedom of speech (and:

of their right peaceably to assemble and petition the judi-

cial branch of the government for redress of grievances).

It is A denial of the due process rights to notice and

hearing, of the members of petitioners’: class.

Local Rule 22 does not contain or refer to any findings

whatsoever establishing that communication between plain-

tiffs’ and actual or potential class members constitutes

a serious and imminent threat to the administration of

Justice, or a réasonable likelihood of a-serious threat to

the administration. of justice. - . ‘

The order of October 6, 1970, denying plaintiffs leave

“to communicate with the Attorneys General of the several]

States likewise contains no such findings.

Therefore, both Local Rule 22 and the order of October

6, 1970 denying plaintiffs leave to cominunicate with the

Attorneys General are constitutionally imperinissible (Or-

der of this Court, May 1, 1970, in No. 18424, Chase v. Rob.

son, p. 3. meee

In addition, Local Rule.22 as written and as applied

in the order of October 6, 1970. is constitutionally over-

‘

broad. The Rule absolutely prohibits all communication,

including communication which will not Have an effect on _

the administration of justice along with speech which will

have such an effect. The order of November 6 does the

same. (See Order of this Court, May 1, 1970,an No. 18424,

Chase vy. Robson, pp. 4-5).

Local Rule 22 and: the order of October 6, 1970 impose

a prior testraint on pr rotected First Amendment conduct.

They are unrelated to the merits ef the case, and wrongs

‘aused by them may not é¢ffectively be redressed by an ulti-

mate appeal on the merits. Bre

Only immediate action on this Court’s part ‘an ade-

quately eliminate the threatened constraints of free-speech

imposed by the order of November 6, 1970. Local Rule 22

‘and the order of November 6, 1970 have a chilling effect

on free speech, and plaintiffs should not be forced to as-

sert their invalidity in a. contempt’ proceeding.

local Rule 22 and the order of November 6, 1970 deny-

ing the right to communi¢ate with the Attorneys General

of the several States constitute a clear abuse of discretion,

and are a proper subject for mandamus. (See order of

this Court, May 1, 1970 in No. 18424; Chase v. Robson, p. 5.)

(Although we liave not made all the Judges of the Dis-

trict Court parties to this proceeding, .we . respectfully

direct this Court’s attention to the fact that it has super-

visory power over the rules of the District Court, and

has the right to use mandamus to bar the operation of a

void rule or one inconsistent with the rules of the United

States-Supreme Court. Sanders \ | Russell, 40.8 2d 241,

244.) | ;

We reeeeitially direct the Court’ s attention ¢o the lan-—

guage of the Supreme Court in Brotherhood of Railroad

’ Trainmen v. Virginia, 84 S.Ct. 1113, 1116, 377 U.S. 1, 5-6.°

“It cannot be seriously doubled that the First

— 47a —

-Amendment’s guarantees of free speech, petition and

assembly give railroad workers the right to gather

toge ther for the lawful purpose of helping and ad-

vising one another in asserting the rights Congress --

gave them-in the Safety Appliance Act and the Federal

Kmployees., Liability Act, a statutory right which

would be vain and futile if the workers could not talk

together freely as to the best | course to follow,’ ’ (Em-

- phasis supplied.)

The District Court, in the absence of notice to the other.

memnbers of the class, has already tentatiy ely determined

that the suit should be dismissed as far as Section 1 of the

Sherman Act is concerned. The rights of the other meim-

bers ‘of the class should not be so abruptly foreclosed,

without notice ae an opportunity for hearing. “Equal

Justice under. law” as the touchstone of American justice

should not give so over-whelming an advantage to Gen-

eral Motors, the $23 billion dollar colossus,

p RAYER FOR RE LIK .

: W herefore, the petitioners Roger Boaties, et al. pray that

this Court:

1. Tssue a writ of mandamus directing the Respondent, /

the Honorable William Campbell, to vacate his: order of

October 6, 1970 issued in the ease of Boshes, et al. v. Gen-

eral Motors, No. 68C 1454, denying their motion for leave,

to communicate with the Attorneys General of the several

States, Local Rule 22 von obstante; and imposing limita-

tions’ upon the freedoin of speech, of -assembly, and of

petition, of the petitioners and their counsel; and denying

the member rs of petitioners’ class due process rights ‘of no-

tice and hearing.

°2. Issue a -rule upon the Respondent, .the Honorable

William J. Campbell, to show cause Why a writ of prohibi-

tion should not issue to. prevent him from enforcing Local

CMS Te eR a a

ete,

= 48a— - ie

Rule 22, at least insofar as communication between these

petitioners and their cowisel, and the Attorneys General

of the several States are concerned.

'_ 3. Issue its order staying the procéedings. in ise trial

- court until this Court has“determined the validity of such

order on consider ation of this petition or on the direct ap-

peal taken from such order.

4,.-Sua sponte, in the exercise of its supervisory juris.

diction over the.rule-making power of the District Courts,

and its attentidn having been directed to Local Rule 22,

hold Local Rule 22 unconstitutional for violation of ‘the

First Amendment and the due process clause of the Fifth

Civil Procedure of the Supreme Court.

5. Make such other order as may be appropriate to

vindicate the First Amendment and Fifth Amendment

rights of plaintiffs and fhe members of their class.

A. Braptey Exe,

1 N. LaSalle St.

Chicago, Il. 60602

Milton K. Joseph

Charles Liebman

Raymond I. Suekoff

120 W. Madison St...

Chicago, Ill. 60602

Tel. 368-4433

By, fT Saeene Raves ina ncunsa bail icee cinacbenianmnsiociseaan ee

- Charles Liebman,

Attorneys for Petitioners

* he ll an

State of Illinois)

County of Cook )

YO.

se.

Charles bikie, being first duly sworn, on oath’ says

that he is one. of the Gounsel for petitioners herein; ‘and

that the allegations of fact in said petition contained are -

true. :

Charles Litheeas

One of the attorneys for petitioners herein.

_ Subscribed and sworn to before me this

eaeextssiduashdasined etuitds day of February, 1971.

CoCo ee eOCeDeneesesoeeeseococeeererocrereceseceeesoeeesoeececoce®

Notary’ Public

UNITE D STATES COURT OF APPEALS

For the Seventh Cireuit

Chicago, Illinois 60604

Friday, February 12. 1971

Before

~ Rocer Bosues, et al., an

a Petitioners,

No. 71-1104 “4

ee Wiuiam J. Cascraxzs,,

United States District Judge, ete.,

_ Respondent. :

This matter comes before the Court on the original ..

tion of Roger Boshes, Esther K. Roerig, Curtis Collum.“

Frank -Jackson and.James Taylor for writs of age.

and prohibition with relation to an order of denial to peti- .

eral of the several.states, which order has been appealed —

from to this Court in Nos. 18939 and 18940,

oa Bla

"On consideration whereof, It Is Ordered and adjudged

by this Court that the said original petition for writs of

mandamus and prohibition he, and the same is hereby,

Denied. °

A True Copy:

Teste: : 3

/s/ WKenneth J. Cormick ee

Clerk of the Unitéd States

Court of Appeals for the

Seventh Cireuit.. |

By /s/- H. K. MeCormack

Deputy, Clerk

BS ‘Lge Unitep States Courr Or APPEALS

For The Seventh Circuit

~ Rocer*Bosues, et al.,: a

Petitioners, | No. 71-1 104

, . Petition for Writ of

¥ ss Mandamus or Prohi-

HonoraBLe WittiaM J. CAMPBELL, |.) -,- stash

Pay : ene ~? 1 bition

United States District Judge, ete., .

' Respondent. |

Da (Filed February 25, 1971)

‘PETITION FOR REHEARING, OR, IN THE ALTER-

NATIVE TO VACATE . THE ORDER OF DENTAL,

AND TO FILE A NEW ORDER STATING THE REA-

SONS FOR ‘THE DENIAL OF THE PETITION FOR

MANDAMUS:

‘The petitioners, with the utmost deference, most respect-

fully petition this Court, either to grant a rehearing herein,

or to vacate the order of denial heretofore entered herein,

and to file a new order stating the reasons for denial of

the petition for mandamus. :

These petitioners most respectfully suggest that the lack

of any reported litigation at this time relating to Local Rule

22 is a cogent reason for this Cot to discuss the ques-

CRE ATL CAS OO laa RT ARIAS

—dla—

tions raised in this mandamus with regard to Local Rule |

22, in an opinion, in order to afford sorely needed guidance

to the District Courts and to the Bar, in this era of pro-

liferating class actions. 2

; eee n wubenttted

A. Bradley Eben

Raymond T. Suekoff —

. Milton J. Joseph

~ Charles Liebman-

‘Attorneys for Petitioners

In THE Unrrep States Court Or APPEALS

For The Seventh Circuit k

- Thursday, April 8, 1971:

Before

Hon: Orro-Kerner, Cireuit Judge |

. Hon. Jonn Pavt Stevens, Cireuit Judge

- Rocer Bosuss, et al., )

| Petitioners, a ;

No. 71-1104 . _ | Petition for Writ ‘of

mi See : Mandamus or Prohi-

~Hoyoraste Wiuiam J. Camppena, | Pition

United States District Judge, ete.,

_ Respondent. )

‘It Is Hereby Ordered by the Coirt that the eis for

- rehearing or in the alternative to vacate the order of. de-

nial filed herein on February 25, 1971, be — the same is

hereby denied. :

APPENDIX D

Proceedings in the U. S. Court of Appeals for the Sev on 4

Circuit in original Mandamus action entitled Roger Boshes,

et al. vy. Honorable William J. Campbell, Judge, ete., No.

71-1122. - a | a =)

’

— 52a —

In Tue Unrrep States Cowrt Or APPEALS

Hints BosHEs, et al., Spe: ,

Petitioners

Vv. LY

HoxoRaBLE Wiiiam = J. Og a 71-1122

Judge, United States District Court

for the Northern District of Tk

linols,

Respondent ;

ORIGINAL, PETITION FOR WRITS OF. MAND AMUS

AND/OR cereal WITH RELATION TO AN

- ORDER DENYING A MOTION UNDER RULE 23 OF

' THE RULES OF CIVIL PROCEDURE, FOR THE

COURT BELOW TO DETERMINE WHETHER AN AC-

TION IS TO BE MAINTAINED AS A CLASS ACTION,

AND FOR NOTICE TO THE MEMBERS OF THE

CLASS, WHICH ORDER AS BEEN APPEALED FROM

~ TO THIS COURT IN NOS. 18939 and 18940. -

Now comel Roger Boslies, Esther K. Roerig, Curtis Col-

lum, Frank Jackson and James Taylor, by their attorneys,

A. Bradley Eben, Milton K. Joseph, Charles Liebman and

Raymond ‘I. Suekoff, and petition this court:

1. To-issue a Writ of Mandamus directing the Re-

spondent,, the Honorable William J. Campbell, Judge,

United States District Court for the Northern District of

Illinois to vacate his order of November 6, 1970, entered

in the case’ of Roger Boshes, et al. v. General Motors

~~~Corporation, No. 68C-1454, denying the motion of peti-

tioners as plaintiffs in said case, which motion was made_

more than two years after the commencement of said ease,

that the court determine whether the action be maintained

‘as.a class action; and denying the motion made by these

i —.53a —

petitioners as plaintiffs below as aforesaid, for notice to

members of the class. ne ;

2.. ‘To issue a rule upon the Respondent, the Honorable

William J. Campbell, to show cause why a writ of prohibi-

tion should not issue to prevent him from. proceeding with

the case below, and. particularly with ruling upon ‘tlie suf-

ficiency of the coinplaint as amended below, ‘until said Re-

spondent shall have determined whether the case below

shall be maintained as a-class action, and until after the

best notice practicable under the circumstances shall have

‘been given to the class.

3. To issue its order staying proceedings in the Dis-

trict Court in said case No. 68C-1454; until this Court has

disposed of this petition for a writ of mandamus and pro-

hibition. . :

STATEMENT OF FACTS

The case below was brought on Angust 6, 1968, and is

pending as an asserted class action, by the five plaintiffs

as consumer-purchasers of General Motors automobiles, on_

behalf of all consumer-purchasers of General Motors auto-

mobiles within the four- year ‘limitations period (15 U.S.

C.A. § 15b) as a class, “to recover damages for violation by__

General Motors Corporation of Sections 1 and 2 of the

Sherman Act and Section 7 of the Clayton Act, and for

other ‘appropriate relief.

The plaintiffs are ordinary, average “individadla of aver-

age means and resources. It is the poliey of tlie law that

_ they are “private attorneys general”, acting in the public

interest, as well as privately. Flast v. Cohen, 88 S.Ct. 1942,

1957, 1963; 382 U.S. 83, 109, 120; Scripps-Howard Radio v.

Federal Communications Commission, 316 US. 4, 15; 62.

S.Ct. 875, 882.

The book value of General Motors’ net worth is approxi-

mately $10 Billion. Its working capital is over $4 Billion.

—"

The sroidik market vakue of its eommon | stock i is over $23

Billion. :

The filing of the suit below as a, dein suit tolled the four-

year statute of limitations as to the members of the class.

Union Carbide v. Nisleu,. 300 #.2d 561. ‘Esplin v. Hinchi, |

' 402 F.2d 94, Cert.den. 89 S.Ct. 1194; 394 U.S. 928; 22

'L.Ed.2d 459. There seems to be no statutory or case law —

as to the-effect on the class with regard to limitations of

a determination by the court below (a) that there is no

cause of action for damages; (bh) that the - sated not be

. maintained as a class action.

On March 23, 1970, defendant General Motors filed ae

motion to dismiss -the complaint. The motion was taken

under advisement by the District Judge, and while said

motion of defendant to dismiss the complaint remained

- pending and undisposed of, plaintiffs on September 25,

1970 filed a motion tor Rule 23 orders in words and figures

as follows, to;wit:

“MOTION FOR RULE 23 ORDER

“Ce ome now the plaintiffs and move the court to de-

termine by order pursuant to Rulé 23 of the Rules of

Civil Procedure that this action w= to be maintained

as a class action, and to ufake such orders regarding

notice to-the members and alleged members of the.

class as may be appr8priate or necessary under the

Constitution, the laws, and the Rules.”

This motion was: based on Rule 23(¢)(1) of the Rules of

Civil Procedure for the United States District Courts,

- which reads as follows:

“As soon as practicable after the commencement of

an action brought as a class action, the court shall de-

termine by order whether, it is to be so maintained. An -

order under this subdivision may’ be conditional, and

Ss RIO ale ELE, RAS SERIO ERENT ARNE REUANA KG aS

— 554 — ek

may be altered or amended before the decision on the

merits.” on Se

This motion was further based on the First Amendment

rights of freedom of communication and of assembly to

petition the government for redress of grievances, and the

Fifth Amendment right to due process of law, to be vindi-

cated at this stage of the proceeding by affording ap-

propriate notice and an opportunity for hearing to the

.members of plaintiffs’ class.

Tt was the wish and purpose of plaintiffs as part of doing —

2 conscientious job in representing the class to consult with

other representative members of the class with regard to

their position under the-pending motion to dismiss, and —

with regard to the action to be taken thereunder?

On October 6, 1970, the Respondent, the Honorable Wil-

liam J. Campbell, denied the said motion, and entered an

order in words and figures as follows, to-wit: '

“Motion for orders under Rule 22 and Rule 23 denied.”

Inthe colloquy in connection with the order, Respondent,

the Honorable William J. Campbell, stated: EIN.

- “Your motion is denied: “I will rule on what js pending

before me now, which was fully submitted. Following

that, vou have leave to reinstate vour motion, if it

appears appropriate.” . 4 ot

Subs@quently, on Decerber. 11, 1970, the Respondent en-

téred an order dismissing the complaint insofar as it. pur-

ports to state a clair based on Section 1 of the Sherman

- Act and the theory of an intra-corporate conspiracy; and

in the same order’ stated: j

“The motion... . seeking a determination that this is

a proper class action brought pursuant to Rule 23, and

other questions under Rule 23... will be considered

if and when the court concludes that plaintiffs’ eom-

plaint states a claim upon which relief can .be

granted.” oe |

<<. Se

Plaintiffs then appealed to this Court from the order of

denial, which appeal is now pending (Nos. 18939 and 18940,

Consolidated).

It being uncertain whether appeal or aaa ia ohibi-

tion is the proper remedy, plaintiffs below.now bring this

petition. for mandanius and prohibition.’

REASONS WHY THE WRIT SHOULD ISSUE.

Because of the small amount which might he recovered

by the plaintiffs individually, it -would be totally irrational

for plaintiffs-to pursue their claims excent as a class aec-

tion. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 566-

567. . a | .

They will not pursue. their claims as individuals, but ..

only as members of the class, and on behalf of the class.

-To permit General Motors to contest liability with each

consumer-purehaser in a single, separate suit would give

General Motors an advantage which would be equivalent to

closing the door of justice to all small claimants. This is

what the class suit practice Was intended -to prevent.

Weeks v. Bareco Oil Co., 125 F.2d 84, 90

Hohmann 'v. Packard Instrument Co., 399 F.2d 711,715.

- The interlocutory. order entered on December 11, 1970

_ finding no claim stated under Section 1 of the Sherman Act

was adverse to the class. It was made without a finding

_ that. “extensive publicity has been given the case”, or that

the case has been given “widespread notoriety”. See Sny-

der v. Board of Trustees of University of Illinois, 286: F.

Supp. 927,931. No . of the class other than the

plaintiffs had received a “full, accurate and complete de-

-seription of the pending action.” Compare Schy v. Sus-

; — Corporation, 419 F.2d TN 1116.

424 F.2d 161, 169.

—57a—

TL.

The District Court may not refuse to allow appellants

to represent the class until they have proved their own

right to relief. Johnson v. Georgia Highway Express, Inc.

ALT F.2d 1122, 1124-1125. oe

_ The determination as to whether a class action should be

maintained should be made and notice should be given at

early stages of the litigation, particularly where other ac-

tions may be barred by the Statute of Limitations. Green

v. Wolf Corporation, 406, F.2d 291, 298. See Hale v. Ral.

Ston Purina Co., 432 F.2d 156. ;

Rule 23(e)(1) says that “as soon as practicable after. the

commencement of an action brought as a class action, the

court shall determine. by order whether it is to be so main:

tained”. (Emphasis supplied.) An order under this sub-

division may be conditional and may be altered or amended

before decision on the merits. Nabe :

The undeglined language is significant. It implies a sense

' of urgency. The District Court is not to wait until it de-

termines that a cause of action exists.~K ahn v. Rosenstiel,

[It is not to wait until the District. Court determines

whether the complaint states a claim upon whi¢h relief

might be granted, as the Respondent seems to have

thought. Sections (a) and (b) of Rule 23, which detail the

prerequisites of “representative parties on behalf of all”

do not require “that the complaint state a claim upon which

- relief may be granted” as one of the prerequisites.

There is no question that there ‘are millions of consumer-

plaintiffs. There is no question that among these con-

sumer-purehasers are the several States and their polit-

ical subdivisions (State highway patrol cars, municipality

police cars, cars for officials ‘and public agency pools, ete.).

fee Ses

saan ;

> ”

- — 58a —

There is no question that General Motors is a $23 billion et ee

dollar corporation, whose resources to resist this suit are * *

for all practical pirposes: limitless. There is no question

that more than 214 years have now passed since the ‘filing.

of the suit. - Se . ; :

_ It is perfectly practicable at this time for the District

Court to determine by order whether this. suit is to be

maintained as a class suit. The wording of Rule 23(c¢) (1)

is mandatory; the Rule uses the word “shall”. See John-

son v. City of Baton Rouge, La., 14 F.RS.2d p. 737...

We respectfully direct this Court s attention to the fact

that we ask no more in this mandamus proceeding than

that the District Court make a determination at.this time ;

we do not ask this Court to. tell the Djstrict-Court what

the determination shall bé (although we think it is clear

that the determination must- We in our favor).

~ We respectfully submit that, in the light of the wording

of the rule, the indefinite: postponement of ruling on a re-

quest to make such a determination constitutes an abuse of

discretion, remediable by manddmus in this court. Dairy

Queen, Inc. v. Wood, 369 U.S. 469, 480; Shutte v. Armco

Steel Corp. 431 F.2d 22; Harper and Row Publishers, Inc.

v. Decker, 423 F.2d 487. |

We also‘respectfully submit that in view of the serious

question of the Statute of Liniitations, as it may affect the

members of the class who have no ‘knowledge of the pro-

ceedings, due process requirements under the Fifth Amend-

ment require that some kind of. reasonable notice of the

‘proceedings be given to the class at this stage, regardless

of Rule g3(ce) (2). Clark v. American Marine Corp., 297 F. |

— Supp. 1305.

Finally, we note that in the most recently reported cases,

the Rule 23(c) (1) determination has been made at an early |

stage of the proceedings. Gerstle v. Continental Airlines,

™s .

ENG CSOSA OC AMG TET NEY

14 Fed. Rules Service 2d 342; Turnoff v.N ederldhdsch, etc.,

14 Fed. Rules Service 2d 408; Cusack -v. Nederlandsch, etc.,

14 Fed. Rules Service 2d 415; Philadelphia Electric Co. v.

Anaconda America Brass Co., 42 F.R.D. 324; Hurdy v..

U.S. Steel Corporation, 289 F.Supp. 200: Weisman v. MCA,

Inc., 45 F.R.D.559. —- an ,

; _ PRAYER FOR RELIEF

Wherefore, the petitioners, Roger Boshes, Esther K.

Roerig, Curtis Collum, Frank Jackson and James Taylor,

pray that this court: nee

1. Issue a writ of mandamus directing the Respondent,

_ the Honorable William J. Campbell, to determine whether

the action below, namely, the case of Boshes, et al; v. Gen-

eral Motors Corporation, No. 68C-1454, be maintained as.

a class suit. — |

2. Issue a writ of mandasnus directing the Respondent,

the Honorable.SVilliam J. Campbell to direct appropriate

notice to the members of the class or to representative

members thereof in vindication of their Fifth Amendment

due process rights, of the. pendency of these proceeding¢,

and the nature thereof. -

- Issue its order staying the proceedimgs in the tri

court until this Court has determined whether the writ df

mandamus or either of them prayed for in paragraphs 1 -

and 2 next above shall isste. - ;

—a—

\ ° | z , a

4. Make such other order-as may be appropriate to

vindicate the First Amendment and Fifth Amendment .

rights of plaintiffs and the members of their class.

Respectfully submitted,

| A. Bradley Eben, |

. - 1 N. LaSalle St.

Chicago, Ill. 60602

Milton K. Joseph

Charles Liebman

’ Raymond I. Suekoff

_ 120 W. Madison St.

a Chicago, Ill. 60602

By /s/ Raymond I. Suekoff.

Attornevs for Petitioners

i. STATE OF ILLINOIS )

COUNTY OF COOK. )

if Raymond I. Suekoff, being first duly sworn, on oath says

that he is one of the counsel for-petitioners herein and that

= the allegations of fact in said petition contained are true.

| i , _ /s/ Raymond I. Suekoff

| Subseribed and sworn to before me

this 1!th day of February, 1971.

nae /s/.Naney. Fitzgerald

€ Notory Public .

SS.

—

P ‘ :

2. NAIR scene secestca nanos camesossmces RAE A aE ey an

s . 7 ‘ \

—— 6] a—

In Tue Unrrep States Court Or APPEALS

For. The Seventh Circuit

Friday, Febriary 26, 197]

oe. Before aoe

Hon. Lutuer M. Swycert, Chief Judge

Hon. Orro Kerner, Cirenit: Judge

_ Hon. Joun Pau Stevens, Ctreuit Judge

Rocer Bosurs, et.al... on

Petitioners;

No. 71-1122 : : __ L Original Petition for | i:

Honoraste Witviam- J. Campseiy, [ Writ of Mandamus. '

Judge , tll <r

United States District Court, | 3

i Respondent.

This matter comes before the Court on the original peti-

tion of Roger Boshes, Esther K. Roerig, Curtis Collum. -

Frank Jackson and James Taylor ‘for writs of mandamus

and/or prohibition with relation to an order’ denying a --

motion under Rule 23 of the Rules of ‘Civil Procedure, for

the Court below to determine whether. an action is to be

maintained as a class action, and for notice to the members

of the class, which order ‘has been appealed from to this

Court in Nos. 18939 and 18940. . ot oan

On consideration whereof, It Is Ordered and adjudged

by this. Court that the said original petition for writs of

‘Imandamus and/or prohibition be, and the same is hereby: .

denied. Biase

A True Copy: . Beek

"Teste: Seat . ie occur

/s/ Kenneth J..Carrick |

' Clerk of the United States

Court of Appeals for the

Seventh Circuit.

By /s/ H. K. Me€ormack

' Deputy Clerk

: fe SS

}

‘— 62a —

In Tue Unitep States Court Or’ APPEALS

For The Seventh Circuit

Rocer Bosues, et al.; 7

Petitioners, | No. 71-1129

v. Petition for Writ of

ae i-

HonoraBLte Winiiam J. CAMPBELL, Mandamus or Proh

United States District Judge, ete, | Dito”

Respondent. |

PETITION FOR RE HEARING, OR, IN THE ALTER-

NATIVE, TO VACATE THE ORDER OF DENIAL,

AND TO FILE A NEW ORDER STATING THE REA-

SONS FOR THE DENIAL OF THE PETITION FOR

MANDAMUS.

(Filed Mareh 11, 1971)

These petitioners most respectfully petition this Court,

either to grant a rehearing herein, or to vacate the order

of denial heretofore entered herein, and to file a new order

stating the reasons for denial of the petition for mandamus.

These petitioners most respectfully suggest ‘that the

precedents cited in the Petition for Mandamus, together

with the wording of Rule of Civil Procedure, 23 (ce) (1):

“... as soon a practicable . . .,” indicate that the District

Coart may have deviated from ‘the established practice,

which is that: determination as to whether a class: action

should be mentioned, should be made early in the proceed-

ings, and are cogent reasons for this-Court to discuss in

an opinion the questions ‘raised in this mandamus -with’

regard to Rule of Civil Procedure 23 (e)(1), in order to

a Roar oaie areata MS SPURL R IONE Oy hal . |

— 63a —

afford sorely needed guidance to the District Courts and

to the Bar, in this era of proliferating class actions.

| Respectfully submitted,

A. Bradley Eben

Raymond I. Suekoff ' ae

Milton K. Joseph

Charles Liebman

Attorneys for Petitioners

By /s/ Raymond 1. Suekoff

In Tue Unrtep States Court Or APPEALS

For The Seventh Circuit

Tuesday, March 16, 1971 .

-Before

.Hon. Luruer M. Swycert, Chief Judge

e Hon. Orto Kerner, Circuit Judge —

Hon. Joun Pavt STEvENS, Circuit Judge.

~Rocer Bosurs, et al.,’ >

Petitioners,

No. 71-1122 :

: bisa - Original Petition for

Honoraste Witiram J. CaMPBELL, | Writ of Mandamus.

Judge |

United States District Court, ;

-Respondent.

This matter comes before the Court on petitioners’ peti-

tion for rehearing, or, ‘in. the alternative, to vacate the

order of denial, and to file a new order stating the reasons

for the denial of the petition for mandamus.

On consideration whereof, the Court being fully advised

in the premises,

Cea ae

— 64a <7

It Is Ordered that said petition be and the same is hereby

denied. ) re

Respectfully submitted,

ANTHONY Braptey EBen

. os Mitton K. Joserx

Gc. CHARLES LIEBMAN

Raymonp I. Surxorr

Attorneys for Petitioners

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