# Petition for Writ of Certiorari — Abate v. Pittsburgh Plate Glass Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0366%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 900 ## Text AUG B 1974 j ~ WIUCHAEL HOGAK, JR..C! cax Ix THE a Re Supreme Cot of the United States OQeroner Teno, 1974 No. 74- 74 = 64 ‘ Marie Aware, ef al... Petitioners, Vs. Prrrspurcu Phare Guass Company, ef al., Respondents, PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Jaxe M. Picker Rita Pace Reuss CHARLES E. GUERRIER Lispetu A. Moopy 620 Keith Building 1621 Euclid Avenue Cleveland, Ohio 44115 Martix Lvrow 3630 Mellon Bank Building si 525 William Penn Place 7. Pittsburgh, Pennsylvania 1521) Euizasetn R. Rixpskorr 253 Blake Road WMamden, Connecticut 06517 (203) 777-7601 Attorneys for Petitioners ——— __——_——— ————————————__ ee mi Certificate of Service INDEX PAGE J SASS SSIS att et al Oe en CE 1 oi cc. EES Pe Lhe POA SOON ARR 2 tiga ail oe oc Een ep RENEE OEE EEE ee 2 Statutory Provisions Tnvolved ooo cceececcceeeceeeee 3 Ge RE gO UEG ea ae 3 Reasons for Granting the Writ 0.000.000.0000. 9 A. The Settlement Is Inadequate 00000000. 9 B. The Court Below Erred in Denying Petition- ers the Opportunity to Opt Out of the Settle- ROUEN stapes tc ids roel sitsanesoraaasadabbliicinenianninnedaes dllleanacaninen 18 UNIO 9h dt Si halen cased ices yanlxioscpushwasmieniiannnsaiatorasshisnad 23 APPENDIX— Opinion of the Court of Appeals 0.00. la Opinion of the Court of Appeals on denial of motion for rehearing and for rehearing ex bane 1a Judgment and Mandate of the Court of Appeals ... 12a Opinion of the District Court Rule 23, Federal Rules of Civil Procedure ........... 20a Tithe VIT 6f the Civil Rights Act of 1964, 42 United PRI AGU, TI, ERO, oasis cannnvarnconsenccacecsinoesenenee 24a li PAGE TABLE or Cases shir Line Stewards aud Stewardesses: Assn. Laval 330 Ve damerican Nirlius, Tne. 4900 Pit 6360 (7th Cir, 1905). cert. denied sub wom Aer Line Stewards aud Stew ardesses wlssn, Local 50 ¥; Zipn soo U.S. wees 5, Pk! SNe RECT mate patel Setasninnescereucceti ae Bowe v, Colgate-Palmolir, Co., 416 F.2d 711 (7th Cir. WP saeco oie saaiccns hacen aS ag a: 14,17 Eisen vy, Jacqueline & Carlisle, —— U.S. —— (1974) 21 Griggs v. Duke Power Co,, 401 U.S, 424 (1971) 0... 12 Heady. Timken Roller Be aring Co. AS6 F.2d 870 (6th pola sic) He oO RET Te 17 Johnson vy. Georgia High way Express, Inc., 417 F.2d RUS2 (Sth Cir, W9G9) oss ccseeeese 2] Johusony. Goodyvar Tire & Rubbi rCo., 491 F.2d 1364 pigeon stig: Se ceases LN en 17, 20 BON ivisbvnnaooimansen nan a cl na os 14,16 Kober v. Westinghouse Elcctric Corp., 480 F.2d 240 canons eosin BO a me LEN Hao ne RE 16,18 LeBlane v. Southern Bell T, lephow & Telegraph Com- pany, AV Fed 1228 (Sth Cir. 1972), cert. denied, 409 atte a Re eT 9 ee SME A Sig 17,18 Manning v. General Motors Corp., 466 F.2d 812 (6th PRMD ecccetrenn eae ee het ea 17,18 lil PAGE Michel v. South Coreliva State Employmeiat Service, oe Bid 250 (4th Cir, 1967), cert. denied. 389 U.S. WO RUE a sscrencsisea nik oa aaa 16 Mood: th Alhi martes Paper (Co., 474 F.2d 134 (4th Cir. Newman ve Piagie Park Luterprises, 390 US. 400 [ged a LOREAL IEEE OLDS WEL Ce NON EN EET 17 Newman v. Sicin: 45 bP .2d GSO (2nd Cir. 1972) See ee 19 Veuwirth vy. Allen, —— ¥. Supp. —-- (S.D.N.Y. 1964), afd 338 F.2d. (2nd Cir, 1964) oe. oan 19 Pettway vx. American Cast Iron Pipe Co., 494 F.2d 211 RPG RN pease ceteas Seabed et aseee ea ers 17 Protective Committee for Independent Stockholders of TMT Ferry Inc. vy. Anderson, 390 U.S, 414 (1968) ...9, 19 Robinson v. P. Lorrilard Cory., 444 F.2d 791 (4th Cir. 1901). cert. denied, 406 US. 906 (1972) oo. 14,16 Rosen v. Public Service Electric and Gas Co., 477 F.2d a OUI a gee 16 Rosenfeld v. Southern Pacific Ceca 295 F.Supp. 1219 (C.D. Cal. 1968) af’d in part, 444 F.2d 1219 RUE SAN MOU Gece ation ic ee uemameceimasicnn 14, 15,17 United States v, Bethlehem Steel Corp., 446 F.2d 652 See ON ee er eee Halon nie 14 Weeks v. Southeru Bell Tdeploue & Telegraph Com- pany, 408 F.2d 228 (Sth Cir, 19GB) oon cccnccecrcccccsneses 14 Williamson v. Bethlehem Steel Corp, 468 ¥F. od 1201 fh NRE ile alien Goll rt AEA EA Ie Young v. Katz, 447 F.2d 431 (Sth Cir. 1971) iv PAGE CONSTITUTIONAL AND STATUTORY Provisions Fifth Amendment to the United States Constitution ...18, 21 42 United States Code, Section 2000a-3(b) oo... 17 42 United States Code, Section 2000e, ef seq. 0.0.2... passim Rule 23, Federal Rules of Civil Procedure 2.000000... passim IN THE Supreme Court of the United States Ocroper Term, 1974 No. 74- Manire Apate, ef all... Petitioners, vs. PirrspurcH PiLatre Griass Company, ef al., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE ;UNITED STATES COURT OF APPEALS i FOR THE THIRD CIRCUIT Petitioners pray that a writ of certiorari issue to the United States Court of Appeals for the Third Circuit to review the judgment entered in the above-entitled case on April 4, 1974, rehearing of which was denied May 7, 1974. Gpinions Below The opinion of the United States Court of Appeals for the Third Circuit is reported at 494 F.2d 799 (1974) and set forth in the appendix, ixfra, at pp. la ff. The order deny- ing rehearing and rehearing en banc is as yet unreported; it is set forth in the appendix, infra, at pp. 11-a ff. The opinion of the United States Distriet Court for the Western District of Pennsylvania is reported at 59 F.R.D. 616 (June 2° 12, 1972) and is set forth in the appendix, infra, at pp. 14-a ff. Jurisdiction The juggment of the United States Court of Appeals for the Third Cireuit was entered on April 4, 1974 and motion for rehearing was denied on May 7, 1974. The jurisdiction of this Court is invoked pursuant to the provisions of 23 United States Code, Section 1254(1), re- view of a judgment of the United States Court of Appeals for the Third Circuit having been requested. Question Presented 1. Did the court below err in upholding the district court order, approving the compromise and settlement of ali issues in this class action claiming sex discrimination under Title VII of the Civil Rights Act of 1964 (42 United States Code, § 20002, et seq.) where: A. One fifth of the members of the class and one quarter of those with timely charges filed with the Equal Employment Opportunity Commission objected to the terms of the settlement; and B. Only a small percent of one of three elements of relief prayed for was realized under the terms of the settlement; and C. The only opportunity class members had to ex- clude themselves from further participation in the ac- tion came immediately prior to trial and made no mention of the fact of or terms of settlement discus- sions, 3 Statutory Provisions Involved 1. This case involves the provisions of Rule 23, Federal Rules of Civil Procedure, fully -et forth in the appendix, wfra, at p. 20-a ff. 2. This case also involves various provisions of Title Vil of the Civil Rights Act of 1964. 42 United States Code, © 20000, ef seq., relevant portions of which are fully set forth in the appendix, (vfra at p. 24a ff. Statement Petitioners here constitute approximately one fifth of the original class of plaintiffs in this action, who sought to object to the settlement of this action when first pro- posed in the district court in January of 19732 The facts underlying this action for sex discrimination under Title VII of the Civil Rights Act of 1964 (hereafter “Title VII") actually arose much earlier in the 1940's. At that time, respondent Pittsburgh Plate Glass (hereafter “PPG”") was, as it now is, engaged in the fabrication of glass products at the Creighton, Pennsylvania plant. Be- ginning in 1942 cach of the plaintiffs sought and obtained work at the Creighton plant. As hourly employees of PPG's Creighton plant, each of the plaintiffs was also rep- resented by the respondent union here, in a series of col- lective bargaining agreements extending to the present time, By the early 1950's, PPG had found it necessary to begin laying off employees in their order of seniority. The class During the course of these proceedings the exact number of plaintiffs objecting to the settlement has varied. The percentages have remained the same. and therefore do not significantly alter the percentages here. 4 of plaintiffs in the present action, with seniority dates ranging from \ugust 12, 1748 to August 2, 1951, were accordingly affected by these lay-otis, together with numer- ous of their male counterparts, The late 1950's and early 1960's saw Increased produc- tion at the PPG Creighton plant. Accordingly furloughed employees were recalled in order of seniority, until by 1966 each furloughed male employee had been recalled to the Creightor plant. However, none of the original 452 women who comprised the original cinss of plaintiifs in this action were recalled. And when, in 1966. PPG began to hire new employees at the Creighton plant, all of those hired were male, while the 452 furloughed women remained unem- ployed.’ Contemporaneously with the recall process affecting male employees, PPG also sought in the early 1960's to alter the seniority provisions in the collective bargaining agree- ment which guaranteed enplovees on layoff “perpetual” seniority. Thus, in 1962 PPG sought io alter its seniority system by adding a provision to the collective bargaining agreement which would automatically terminate anyone on lay-off for more than two years; a similar five vear cut-off provision Was proposed in 1964. Each of these pro- posals would have operated to “ rminate men, as well as women then on lay-off. Both proposals were rejected by the unions. Finally, on August 14, 1968, PPG and the unions agreed to a “seniority cut-off” in the collective bar- gaining agreement then being negotiated. That agreement ended the former “perpetual seniority’ system and caused the tmmediate discharge of any person not actively em- ployed with the company within the five years preceeding the date of the agreement. The direct result of this agree- * PPG hired its last woman into a bargaining unit position in 1951. Appendix, vol. Tat p. 43 ia the court below, No. 73-1697. 5 ment was the termination of the 452 women employees who form the class of pluintiti’s in this action. No men were terminated as a result of the agreement. Notification of the terminations caused by the new senior- ity system came by letters daicd September 26, 1968, Upon receipt thereol, some 51 women filed timely charges of sex discrimination with the Equal Employment Opportunity Commission (hereafter “Mm focC') 4 The EEOC began in- vestigation of the charges, but ultimately refused to reach a determination op the issue of whether PPG and the unions had violated Tithe VIPs eonsmand against sex dis- crimination. Instead, tae ENOC notified each of the charg- ing parties of her right to sne in federal eourt.® This action was timely begun after receipt of a right to sue letter on August 4, 1970. Plaintiffs sought full relief for the sex discrimination practiced by the company and the unions, Both defendaw's immediately moved to dismiss the suit on grounds that plaintiffs had failed to file timely charges of discrimination with the EEOC." This motion * During this period, wonien eprplos ees constituted between 22 and 25%) of the toons decal membership. Appendix. vol. TT at p. V1) in the court below, No. 73-1697. * Rach such charge was properly lodged with the EEOC within 90 days of the respective charging party’s reecipt of her letter of terinination, Ths EROS failnre to reach a determination in the present set of charges was the result of a conflict oceasioned by the Com- Missions position in a seeond set of sex discrimination charges filed by active PPG employees. These fifteen charges, filed in 1966, claimed diseriinination in the company’s policy of limiting jobs to one sex. These charges were ultimately resolved in an EEOC conciliation execute! on Novon der 18. This agreement opened sone. but not al. formerly malo Jobs. Those jobs which continued to be restrieted to mien onty were agreed by all parties to be jobs that only tied could adequete © perform. Naturally. none of the presont class of plaintuts was present during these proceedings. ’ "42 United States Code, 250d) required. prior to its 1972 amendment. that elarges of discrimination be lodged with the EEOC within 90 days of the date of the act complained of. 6 was denied by order of the district court entered April 21, 1971. On July 15, 1971, following initiation of pre- trial discovery, the action was certified as a class action under Rule 23(b)(2), with notice waived. That order was later amended in 1972, when the action was again cer- tified for class treatment, this time under Rule 23(b)(3). The required notice for a 2?3(b)(3) class was given to each of the 492 elass members force tiest dine on July 31, W72. That notice contained the proposed date of trial and informed class members that “Ju]nless you express a de- sire in writing to this Court te be excluded from this ae- tion... the judgment will include you as a member of the elass and you will be bound by it. If vou desire to be included in this class action, you do vot have to reply to this Notice? (original emphasis). The notice also included a statement that all class members were then being repre- sented by the plaintiffs’ lawyers, but that any class mem- ber might enter an appesrance with separate counsel, The trial of this iatter proceeded in a bifurcated fash- ion, With Hability and damages designated for hearings in that order. Piaintifs began and completed the presentation of the merits of their ease on the issue of linbility in the first day of trial, held November 27, 1972. At the coneln- sion of this hearing, a second notice to elas Two such justifications are possible and both were considered and improperly applicd by the lower court. The “business necessity” defense was first articu- lated by this Court in Griggs v. Duke Power Company, 401 U.S. 424 (1971). The Court of Appeals suggests that beeause “the termination provision was instituted to pro- mote PPG’s ‘business purpose’ of securing a work force of balanced age” and because the provision was of “ques- tionable discriminatory effect”, the district court migiit properly conclude no sex discrimination present.’® This rationale conflicts with both this court’s decision in Griggs, as well as with evey other major decision of courts of appeal applying the “business necessity” doctrine since Griggs. The fact that PPG’s decision against reeall and hire of its women employees on lay-off was based on valid business reasons and made in good faith does not establish “business necessity. This Court said in Griggs: Congress directed the thrust of the Act to the con- sequences of employment practices, not simply the motivation. 401 U.S. at 432. What the court below may have meant with its “ques- tionable discriminatory effect” language is unclear. It is difficult to understand how failure to recall women em- ployees, all the while recalling men steadily and even hir- ing new men for the first time, could be anything but sex discrimination. In certain cases the business purpose may over-ride the fact of discrimination, but that seems an unlikely pos- sibility here. “Business necessity, as first articulated by this Court in Griggs, and later applied by the courts of 15 See opinion of the court below, infra, at p. 4a ff. 1° See opinion of the court below. infra, at p. 5a ff. 14 appeal, connotes something far beyond convenience. it has been described as an “irresistable demand”, United States v. Bethlehem Steel Cerp., 446 F. 2d 652 (2nd Cir. 1971) and as something «ssential to the safe and efficient oper- ation of the employer's business, Robinson v. P. Lorillard Corp., 444 F. 2d 791, cert, denied 406 U.S, 906 (1972). But here the business purpose underlying the company’s ter- mination of “perpetual seniority” has been expressed as a need to have a work force of varied age distribution.” That this does not rise to the level of an “irresistible demand” is seen by the fact that twice previously the same proposal was waived by PPG during collective bargaining. The second possible defense to plaintiffs’ prima facie ease of sex discrimination is the “bona fide occupational qualification” defense embodied in Section 703(e) of the Act. The court below discusses this defense cursorily and suggests that by allegations alone, PPG has presented ad- equate grounds to justify the acceptance of a minimal set- tlement."* The lower court thus appears to have misconstrued the “BFOQ” defense. This exception to sex discrimination has been narrowly applied by the courts of appeal. Unless “all or substantially all women are unable to perform a given job, disqualification of any woman, from such job category must proceed on an individual basis. See Weeks vy. Southern Bell Telephone d Telegraph Co., 408 F. 2d 298 (5th Cir. 1969): Bewe v. Colgate-Palmolive Co., 416 F. 2d 711 (7th Cir. 1969); Jurinko v. Wiegand, 477 F. 2d 1038 (3rd Cir. 1973); and Rosenfeld v. Southern Pacific Co., 444 F. 2d 1219 (9th Cir. 1971). 7 See the Brief of the Defendant-Appellee PPG in the court below at p. 11; the transcript of the proceedings in the district court held December 21, 1972 at p. 67 ff; and the opinion of the court below at p. da. 18 Opinion of the lower court, infra, at p. 14a. 15 Stated differently, once a policy such as PPG’s has been shown to discriminate, application of the “BFOQ” stan- dard will, in the majority of cases, be a matter of individ- ual proof of damages. Women employees, like their male counterparts, must be given an opportunity to compete. As the court in Rosenfeld, supra, noted: The premise of Title VIL... is that women are now to be on equal footing with men, [citation omitted] The footing is not equal if a male employee may be appointed to a particular position on a showing that he is physically qualified, but a female employee is de- nied an opportunity to demonstrate personal physical qualification. Equality of footing is established only if employees otherwise entitled to the position, whether male or feinale, are excluded only upon a showing or individual incapacity. 444 F. 2d at 1225. In evaluating the strength of the plaintiffs’ case here, the “BFOQ” defense is useless. Neither court below had before it any evidence on the individual abilities of the plaintiffs, since the issue of damages had not been reached. There could have been no basis to discount the strength of plaintiffs’ claim by reliance on the “BFOQ” defense. Indeed, had there been proof indicating that some of the plaintiffs would not in 1966 or would not now be able to perform the jobs at PPG's Creighton plant, it would have been error to discount the entire case on that basis. The court below concludes its weighing of the merits of plaintiffs’ claims with a reference to two procedural de- fenses available to the defendants. The first eoncerns timely filing of the plaintiffs’ several charges of discrim- ination with the Equal Fimployment Opportunity Coni- Mission, as required by 42 United States Code, § 2000e-5(e). This issue was in mediately raised by both defendants in 16 the district court on motion to dismiss. That court found timely filing and ruled for the plaintiffs in April of 1971. This ruling was never challenged ‘ad no appeal was taken from it, yet the court of appeals concludes that “plaintitts appear not to have met that [filing] prerequisite.’'’ In support of this view it cites only Mickel y. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967), cert. denied 389 US. 877 (1967), a case which stands for the proposition that a charge must be filed with the EEOC prior to commencing court action under Tithe VIT, an issue never before in question here. The significance of Mickel to the plaintiffs’ case here is thus unelear. Finally, the court of appeals suggests justification for the small percent of back pay offered by the settlement on the grounds that back pay awards are “discretionary” and “it is not clear that failure to award such relief [back pay] here, were plaintiffs successful, would constitute an abuse of discretion”. The court coucludes that “{i]n light of their defenses, we believe there is a strong likelihood that PPG and the Union would not have been held liable to plaintiffs for back pay’." The only authority cited for this conclusion is Nober vy. Westinghouse Electric Corp. 480 F.2d 240 (Srd Cir, 1973), a case denying back pay where sex discrimination resulted from the direet appli- cation of state protective legislation. The decisions of the panel below is thus contrary to decisions by other panels of the Third Cireuit, as well as decisions of the Fourth, Fifth, Sixth and Seventh Cireuit Courts of Appeal.*!| Authority of this Court in an analo- * Opinion of the court below, infra, at p. Ga. *° Opinion of the court below, infre, at p. 6a. * Those decisions are: Jurinko v. Wicgand, 477 F.2d 1038 (3rd Cir. 1975) and Roson v. Publie Service Elvetrie and Gas Co. 477 F.2d 90 (3rd Cir. 1973); Robinson v. P. Lorillard Corp., supra, 17 gous area supports this majorirty view that, absent ex- ceptional circumstances, back pay should be awarded where discrimination has been establixhed. In Newmen v. Piggie Past, Badevpriven, BI WSS. We CERAY, Wiere awards of attorneys’ fees under Tithe I] of the Civil Rights Act of 1964, 42 United States Code, © 2000a-3(b), were consid- ered, this Court defined “discretion” : It follows that one who sneceeds in obtaining an injunction under that Tithe should ordinarily recover an attorney's fee unless special circumstances wonld render such an award unjust. 390 U.S. at 402. The only exception to awards of back pay has occurred in the narrow area where sex discrimination suits have arisen in the context of conflicting state protective legisla- tion. Sec, og. Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir, 1971); Manning v. General Motors Corp., 466 F.2d 812 (6th Cir, 1972); and LeBlane v. Southern Bell Telephone & Telegraph Company, 460 F.2d 1228 (Sth Cir. 1972), cert, denied, 409 USS, 890 (1972). Each of these cases involved sex discrimination suits where conflicting state protective legislation existed—not at issue here, Ab- sent such state protective legislation, a majority of circuit courts have held that back pay is the rule, not the excep- tion, once discrimination is established. In the area of back pay, then, “special circumstances” are narrowly construed. To date, no authority exists for the proposition that anything Lif state protective legisla- tion conflicting with sex discrimination qualifies for treat- and Moody ve Albcmarte Paper Co., 474 F.2d 134 (4th Cir. 1973); Johnson 8. Goodyoar Tire & Rubber Co.. AN F.2d 1364 (Sth Cir. 1974) and Pettway ve ctinericen Cast Tron Pipe Co., 494 F.2d 211 (9th Cir, 1974): Head vo Vinkeon Rolly Bearing Co., 486 F2d S70 (6th Cir. 1973): and Bouw v. Colgate Palmolive, 416 F.2d 711 (7th Cir. 1969). 18 ment under the exception”? Kober y, Westinghouse Elec- tric Corp. supra, stands for this proposition and provides no authority for weakening the case of plaintiffs here, since no protective legislation is involved. The most that can be said in support of the lower court’s reliance on Kober is that it erroneously attempis to extend the “special circumstances” exception to action py the EEOC, Aside from the obvious due process considerations raised, no authority supports the lower court’s view that an EEOC conciliation, of which present plaintiffs had neither knowledge nor control, may be now used to reduce their valid claims for back pay under Title VIL. B. The Court Belo: Erred in Denying Petitioners the Opportunity to Opt Out of the Settlement Petitioners argued in the court below, as in the district court, that the settlement in this action need not hind ail of the plaintiffs or none of them. They suggested in the lower courts, as here, that the procedures embodied in Rule 23, Federal Rules of Civil Procedure, do not contemplate such an “all or nothing” result in class actions arising under Rule 23(b) (3). Considerstions of due process under the Fifth Amendment to the United States Constitution suggest that unless private Title VII litigants are free to exercise control of their law suits, Rule 23 may be subject to constitutional attack, Both Courts below viewed approval of the instant settle- ment as essentially a matter of majority rule? In so doing, For cases applying this exception, ser, ag. Rosenfdld y. South- ern Pacijie Co, 444 F.2d 1219 (9th Cir. 197] 1: Manning v. General Motors Corp. 456 F2a 812 (6th Cir. v2): and LeBlane vy. Southern Bll Tlephonse & Telegraph Compan, 460 F2a 1228 (oth Cir, 1972), ccrt. denied, 409 US, 990 (1972). “At the district court hearing on the settlement’s adequacy, the district court judge commented: “LT have one question: Should 19 they attempted to apply an improper standard of review which originated in areas of corporate litigation, such as stockholder derivative actions, patent ‘-fringement suits and antitrust litigation. In areas such as these, where cor- porate health and activity are involved, majerity approval, coupled with cour: review under Rule 23(e), Federal Rules of Civil Procedure?! insures absent class members. of whether “there is any fraud or collusion in arriving at the compromise and... whe vag the compromise if fair, adequate and reasonable... Poowa ve. Katz, 447 F. 2d 451, 455 (oth Cir. 1971). In such situations, the court stands asa guardian for those class niciiers not present. And in such cases, the rights involved are common and joint in the focus of the litigation, typically corporate well-being. See Young v. Katz, supra, at 432, applying the “best interests of the corporation” test as stated in Neuwirth v. Allen, —— F.Supp. ——- (S.D.N.Y. 1964), aff'd. 338 F.2d 2 (2nd Cir. 1964). The standards of review of class scithements involving individual interests rather thau litigation on behalf of cor- porate funds are not identical See, Newman v. Stein, 464 F, 2d 689 464 I. 2d 689, 692 fn. G (2nd Cir. 1972). This distinction was noted by this Court in Protective Committee for Independent Siockiolders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414 (1968), a proceeding I or should T not approve this settlement that has been stated to the Court; should 22 percent overrule 78 percent?” Appendix, vol. IT at p. 253 in the court betow, No. 73-1697, “Rule 236) reads: “Distiissal or Compromise. A class action shall not be dist. d or compromised without the approval of the court. and notice of the prope sed dismissal or compromise shail be given to all members of the e¢lass in such manner as the court directs.” As amended February 28, 1966, eff. July 1, 1966. . “~e 20 for reorganization of a corporation under Chapter X of the Bankruptey Act. There it was stated: Moreover, this Court has held that a plan ef reor- ganization which is unfair to some persous may not be approved by the court even though the vast majority of erediiors have approved it. 390 U.S. 435. Typical of the differences between cases arising under a conmmon corporate question, and those raising both com- inon and individual rights, are Tithe Vil actions such as that of petitioners here, arising under Rule 23° (b)(3).*% Insofar as the class members songlit to litigate broad ques- tions of liability for unlawful sex discrimination, the in- terests of the class were identical. At the point of settle- ment, however, individual factual differences predominate. This is so because a settlement must ultimately be nego- tiated in terms of back pay, which is in turn essentially an individual matter. See. Jotison ve Goodyear Tire avd Rubber Co, supra, where the Fitth Circuit noted the need for “separate determinations on an individual basis as to Who is entitled to recovery and the amount of such recov- ery’, 491 Pitd at 1575. At this point it is likely that the weakest individual claims will press for a favorable set- tlhement on the basis of the strengths of other elass mem- bers’ claims. This Court previously disenssed this conflict in /lansbury v. Lee, SL US. 82 (1940). It is stated there: “It is one thing to say that some members of a class may represent oilier members in a litigation where “Rule 25¢b. 3) in relevant part states: “Class Actions Main- tainable, An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied. and in addition: ee * 3) the court finds that the questions of law or facet common to the meinbers of the class predominate over any questions affeet- ing only individual rienbers, and that a class action is superior to other available methods for the tair and efficient adjudication of the controversy. “ 21 the sole and common interest of the class in litigation, is either to assert a common right or to challenge an asserted obligation. [citations omitted] It is quite another to hold that all those who are free elterna- tively either to assert rights or to challenge them are of a single class, so that any group merely because iis of the class so constituted may be deemed ade- quately to represent auy others of the class in liti- gating thea interests in vither alternative. Such a selection of representatives for purposes of litigation. Whose substantial interests are not necessarily or even probably the saine as those whom they are deemed to represent. does uot afford that protection to absent parties which due process required. The doctrine of representation of absent parties in a class suit has not hitherto been thonght to eo so far.” [citations omitted) Si1 U.S. at 444. (emphasis added). As a solution to this problem, petitioners suggested to both courts below that they be reeonstituted as a “sub- class” under Rule 23(¢)(4)(B). As a subclass they might then have been allowed to “opt out” of the settlement pro- posal while going forward with the litigation on their own right.’ Although such a procedure finds support in this Court’s decision in Eisen vy, Carlisle & Jacquelin, US. (1974), as well as that of Johnson v. Georgia Highway Erpress, Inc., 417 F. 2d 1122 (5th Cir. 1969), it was re- jected by the courts below as outside the ambit of Rule 23(e). We believe this conclusion to be error and in direct con- flict with recent authority in the Seventh Cireuit. Tssues nearly identical to those raised here were decided along *" As hes heen noted. petitiouers bere represented 25% of those originaliy filing EEOC charges in this action. As such numbers of them might have maintained her own action independent of the present suit. Supra, at p. 3. 22 the lines petitioners suggest in Air Line Stewards and Stewardesses Assn., Local 550 v, American Airlines, Ine., 400 F. 2d) 636 (7th Cir. 1973) cert. denied sub nom Air Line Stewards and Stewardesses Assn, Local 550 v. Zipes, U.S. (1974). The similarities in the actions are striking. Both are class actions raising claims of sex dis- crimination under Tithe VIL. In both the class subdivided along the lines of the relief sought: in both counsel for plaintiffs negotiated a settlement without consulting the Wishes of individual class members during the process ; and in both a meaningful opportunity to “opt out” was lacking.*? Yet the results obtained by petitioners here differ mark- edly from those of the Seventh Circuit in lar Lines Stew- ards, That case was remanded with directions, first, that the settlement be set aside to allow for the formation of appropriate subclasses, each properly represented; and, second, so that class members might enjoy a meaningful opportunity to opt out of the litigation, if they desired. If class actions are to continue as a successful device for litigating multiple claims, the confliet between these deci- sions must be resolved in favor of the Air Lines Stewards approach. Any other decision will cause the prudent class litigants to “opt out” at the earliest opportunity as the only way to maintain a semblence of control over their lawsuits. Such a result violates the fundamental rationale behind Rule 22 as well as the principles of efficient court administration. This writ of certiorari should be granted to resolve this contlict between the Cirenits and prevent the misapplication of Rule 25. The Vopr out” notices to petitioners bere made no mention of the then on-going setthanent negotiations and failed to suggest that plaintitfs wouid be bound by the results of a court approved settioment. as Well as a jud@mient. 23 CONCLUSION For all of the foregoing reasons, the petition for writ of certiorari should be granted. Respectfully submitted, JANE M. Picker Rira Pace Reuss Cuar.es BE, GuERRIER Lisseti A. Moony 620 Keith Building 1621 Euclid Avenue Cleveland, Ohio 44115 Mariin Lupcw 3630 Mellon Bank Building 525 William Penn Place Pittsburgh, Pennsylvania 15219 Exizasetu R. Rixpskorr 253 Blake Road Hamden, Connecticut 96517 Attorneys for Petitioners --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0366%3A1. Public record. Not legal advice.