Opposition Brief — Ridgeway v. Pfizer, Inc.
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(3) Muprome Court, U.S | |
No. 93-1912
GPMBCE OF BK BLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1993
>
ELIZABETH RIDGEWAY, et a/.,
Petitioners,
— \
PFIZER INC., et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
BRIEF IN OPPOSITION TO WRIT OF CERTIORARI
David Klingsberg
Counsel of Record
KAYE, SCHOLER, FIERMAN,
HAYS & HANDLER
425 Park Avenue
New York, New York 10022
(212) 836-8000
Of counsel:
Attorneys for Respondents
James R. Adams Pfizer Inc and Shiley Incorporated
FROST & JACOBS
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
QUESTION PRESENTED
Did the Court of Appeals err in dismissing for lack of
standing petitioners’ appeal from a judgment finding a class
action settlement in a product liability case to be fair, ade-
quate and reasonable, where:
— the three petitioners were the only ones of more than
50,000 class members who appealed;
petitioners were non-parties who neglected to file a
motion to intervene until after they had already filed
a notice of appeal; their belated motion to intervene
was denied because the district court was divested of
jurisdiction; the Court of Appeals affirmed the denial
of intervention; and certiorari is not sought from that
decision; and
after studying the settlement terms, petitioners delib-
erately chose to join the settlement class rather than
exercise their opportunity to opt out and pursue their
long-standing parallel action that was pending in
another court?
li
RULE 29.1 LISTING
Respondent Shiley Incorporated is a wholly-owned sub-
sidiary of respondent Pfizer Inc. Shiley Incorporated has no
subsidiaries that are not wholly owned.
Respondent Pfizer Inc has no parent company. The fol-
lowing is a list of its direct or indirect subsidiaries (except
those that are wholly owned):
Subsidiary Place of Incorporation
Pfizer Biogal L.L.C. Hungary
Pfizer Egypt S.A.E. Egypt
Pfizer Limited Ghana
Pfizer Limited India
Dumex Limited India
Duchem Laboratories Limited India
PT Pfizer Indonesia Indonesia
Livestock Feeds PLC Nigeria
Pfizer Products PLC Nigeria
Pfizer Laboratories Limited Pakistan
Pfizer Korea Limited
Pfizer Pharmaceuticals Ltd.
South Korea
People’s Republic of
China
TABLE OF CONTENTS
PAGE
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BARBED OP AU TIPOMILIES oo ccc ccccccccccccccececaccs iv
ADDITIONAL OPINION BELOW .................... 2
STATUTES AND RULES INVOLVED ................ 2
DEMameeets OF TH CAGE. .. oo... ccnccccccccccscs. 2
REASONS FOR DENYING THE WRIT............... 7
I. THE COURT OF APPEALS APPLIED SETTLED
PRINCIPLES OF APPELLATE STANDING
ESTABLISHED BY THIS COURT AND CONSIS-
TENTLY FOLLOWED BY THE COURTS OF
ati irl kind dnemes wise ceWandéacdvdcaea 7
Il. THE DECISION BELOW IS SUPPORTED BY
THE TEXT OF THE FEDERAL RULES AND
THE POLICIES UNDERLYING CLASS ACTIONS
SET FORTH IN THIS COURT’S DECISIONS... 11
III. THE UNUSUAL FACTS OF THIS CASE MAKE
IT UNSUITABLE FOR REVIEW BY THIS
I HGRiel ink yaiiteh audliuhedhee wanda cokes 17
IV. PETITIONERS’ “DUE PROCESS” ARGUMENT
WAS NOT RAISED BELOW, IS MERITLESS
AND DOES NOT DESERVE REVIEW BY THIS
EN EAG Hai Cdk sw cksesbsscaaaadcke tel blest, 19
vo EEE EIST E aie ee er tS 23
TABLE OF AUTHORITIES
Cases PAGE
American Pipe & Construction Co. v. Utah, 414 U.S.
SI ON RN oi nc dndiatinnddcavonscnadiiGnarkeuedsies 13
Angus v. Shiley Inc., 989 F.2d 142 (3d Cir. 1993) ..... 18
Bankers Life & Casualty Co. v. Crenshaw, 486 U.S.
FE CR i nein Sacdindecs Sacadaxcbaialtatedessdicds 20
Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3d Cir.
ED bbe nGdhcnk sabdaseivacsesatcdmiedtabennisennsas 9
Bowling v. Pfizer, Inc., 143 F.R.D. 141 (S.D. Ohio
RODED cnntecienstdnpigaccailersedeieniages ey
Brinkman v. Shiley, Inc., 732 F. Supp. 33 (M.D. Pa.),
aff'd, 902 F.24 1558 (S36 Cit. 1909) .....00662000- 18
Carlough v. Amchem Products, Inc., 5 F.3d 707 (3d
Coe. ae enbickctchbaddeehabebibkdnnsieatasausess a iv
Cohen v. Young, 127 F.2d 721 (6th Cir. 1942) ...... 6, 20, 21
Croyden Associates v. Alleco, Inc., 969 F.2d 675 (8th
Cir. 1992), cert. denied, 113 S. Ct. 1251
GRIPE ssi. ddcicseeansnccesnns eee 6, 8, 13, 14, 15, 17
Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981).. 19
E.I. DuPont de Nemours & Co. v. Train, 430 U.S. 112
CRT IE v<dcdsdvcateagssnskitscdpataoeusseesksdkabaes 10
Gottlieb v. Wiles, 11 F.3d 1004 (10th Cir.
BOWED icsnticodavhevuncniunsen 8, 9, 10, 14, 15, 17, 21, 22
Guarino v. Brookfield Township Trustees, 980 F.2d 399
See SAN POE vcd occdceusantasasvaacatessenaueeel 21
Guthrie v. Evans, 815 F.2d 626 (11th Cir.
BOONE Nc ckdnvessasuddencasyteiiannses 6, 13, 14, 15, 17, 21
Hansberry v. Lee, 311 U.S. 32 (1940) ................. 13
Izumi Seimitsu Kogyo Kabushiki Kaisha v. United
States Phillips Corp., 114 S. Ct. 425 (1993) ..... 11
Layne & Bowler Corp. v. Western Well Works, Inc.,
rk ME EE i asckedik vasddehidked.c ae 17
Loran v. Furr’s/Bishop’s Inc., 988 F.2d 554 (5th Cir.
Bae peli here hug pe Po ae Cee a ere Ee 8
Marino v. Ortiz, 484 U.S. 301
SMG La sbddk ciccénnsannka Foie Be 20, 44, 15,36; 26. 23
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) 13
Police Officers for Equal Rights v. City of Columbus,
865 F.2d 260 (Table), 1988 WL 132696, 1988 U.S.
App. LEXIS 17044 (6th Cir. 1988) ............... 20, 21
Preslar v. Secretary of Health and Human Services, 14
Pus ROE CA BOO a visin ovaccsodecdcnacadsaia 21
Rice v. Sioux City Memorial Park Cemetery, Inc., 349
is PE a alka i oiekockisa ceo a 17
Sertic v. Cuyahoga, Lake, Geauga and Ashtabula
Counties Carpenters District Council, 459 F.2d
Ee Gs ben 6h ok chdsesdda es es 20, 22
Shores v. Sklar, 844 F.2d 1485 (11th Cir. 1988)....... 8
Thompson v. Kentucky, 827 F.2d 770 (Table), 1987 WL
44540, 1987 U.S. App. LEXIS 11297 (6th Cir.
SEED cade Uaincakcnecckecscumaseerue es a 20
Ticor Title Insurance Co. v. Brown, 114 S. Ct. 1359
CRN 6 cad basawacaecbain lade eee 17
United Airlines, Inc. v. McDonald, 432 U.S. 385
(1977)
United States v. Mendoza, 464 U.S. 154 (1984)....... 10
United States v. Reece, 994 F.2d 277 (6th Cir. 1993).. 21
United States v. Tipton, 11 F.3d 602 (6th Cir. 1993),
cert. denied, __ S.. Ct. , 1994 WL 213324
CSRS. AD, BOGE cece cccscescanupedenseceuetadasst 21
In re VMS Limited Partnership Securities Litigation,
FIG F.26 SES CT GAs. ASRS ok cvccenscvevicveseuc 8
Walker v. City of Mesquite, 858 F.2d 1071 (Sth Cir.
SSDS). é<cccccnkacsdisheseancuvenshaves 6, 8, 13, 14, 15, 17
Wills v. Texas, 114 S. Ct. 1867 (1994) ................. 20
Youakim v. Miller, 425 U.S. 231 1976) ............... 19
Statutes and Rules
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EE HH ED BE vacccscccancccccccsececdscuans
ee EE EE BED dc ncspcccsacatsccconsavensecees
Miscellaneous
Advisory Committee Notes on the 1966 Amendments
Oy ees Ws als Ws rhc cdscdswcccbobastncsesencesc«
Kaplan, Continuing Work of the Civil Committee:
1966 Amendments of the Federal Rules of Civil
Procedure (I), 81 Harv. L. Rev. 356 (1967) ......
Note, The Appealability of Class Action Settlements
by Unnamed Parties, 60 U. Chi. L. Rev. 933
CRE cbnsavdcesatnnccevedasesdacwbedins igeecsinies
12
12
15
sheet En Ee eee
IN THE
Supreme Court of the United States
OCTOBER TERM, 1993
No. 93-1912
<> —
ELIZABETH RIDGEWAY, et al.,
Petitioners,
—V.—
PFIZER INC., et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
—$— >
BRIEF IN OPPOSITION TO WRIT OF CERTIORARI
Respondents Pfizer Inc and Shiley Incorporated oppose the
Petition for a Writ of Certiorari, which seeks review of a
Court of Appeals decision dismissing an appeal from a judg-
ment approving a class settlement. Petitioners are non-party
class members who failed to file a timely motion to intervene
in the district court. The Court of Appeals dismissed peti-
tioners’ appeal based on settled principles of appellate stand-
ing established by this Court and consistently applied by the
Courts of Appeals. Further, petitioners (a) failed to move to
intervene until after the district court had been divested of
jurisdiction; (b) passed up repeated opportunities to exclude
themselves from the class and pursue their own previously-
filed parallel action against the defendants in state court; and
(c) attempted to challenge on appeal a class settlement that
they deliberately chose to join. These unusual facts, which are
unlikely ever to be repeated, render this case unsuitable for
review by this Court.
ADDITIONAL OPINION BELOW
The decision of the district court, from which appeal was
taken, is reported at 143 F.R.D. 141 (S.D. Ohio 1992).
STATUTES AND RULES INVOLVED
The petition involves the following rules: Rules 23 and 24
of the Federal Rules of Civil Procedure and Rule 3 of the Fed-
eral Rules of Appellate Procedure. The pertinent provisions
of these rules are set forth in the appendix hereto.
STATEMENT OF THE CASE
This class action was settled on terms satisfactory to the
defendants, the class representatives and the overwhelming
majority of class members. Of more than 50,000 members of
the class, only three—the petitioners—seek to overturn the
settlement on appeal.
The three petitioners had full opportunity to exclude them-
selves from the class after they studied the settlement terms.
They chose to remain class members. Then, after the district
court entered a judgment approving the settlement as fair,
adequate and reasonable, they filed a notice of appeal. The
Court of Appeals dismissed the appeai on the ground that
petitioners—having failed to become parties by intervening
in the district court—lacked standing to appeal.
This action was brought on April 19, 1991, on behalf of
recipients of an artificial heart valve and their spouses. Arti-
ficial heart valves, made of metal and synthetic materials,
Wil Wate eDdTe"
are surgically implanted to replace diseased and failing
human heart valves. Prior to the development of early models
of artificial heart valves some 30 years ago, all persons who
suffered from diseased heart valves became seriously disabled
and soon died from their illness. Respondent Shiley was a
pioneer in developing artificial heart valves, which have
saved tens of thousands of lives.
The class was defined to include only those Shiley artificial
heart valve recipients whose valves continued to function as
expected to sustain their lives without adverse incident. The
class members’ claims were not based upon any failure or
malfunction of their valves, but solely upon their alleged con-
cern about the smail chance of malfunction sometime in the
future. At the time the action was settled, such claims—to
recover for alleged anxiety about a working device—had been
rejected as a matter of law by some 27 courts around the
country, including the Courts of Appeals for the Third,
Fourth, Fifth, Eighth and Ninth Circuits. Bowling v. Pfizer,
Inc., 143 F.R.D. 141, 147, 162-63, 165 (S.D. Ohio 1992).’
The class settlement provides not only cash payments, but
also medical and health benefits which the overwhelming
majority of class members—many of whom are aged and ill
from underlying heart disease—desire to receive as soon as
possible.
Settlement negotiations between defendants and the class
representatives began in July, 1991, and culminated in the
execution of an agreement on January 23, 1992. (Record
, Petitioners’ assertion that these cases involved “merely. . .
negligence and product liability theories” rather than “fraud and other
intentional torts” (Petition for Writ of Certiorari (“Pet.”) at 3) is incor-
rect. Fraud or other intentional torts were alleged in many of the cases;
the courts nevertheless held that there is no cause of action under any
theory for concern that a properly functioning product might fail. How-
ever, as the district court observed, “[o]ne California court allowed the
plaintiff with a properly functioning heart valve past the summary judg-
ment stage of litigation, based on a fraud theory.” Bowling, 143 F.R.D.
at 147.
(“R.”) 48, attachment).* As authorized by Fed. R. Civ. P.
23(c)(1), the district court then conditionally certified the
class for purposes of settlement.’ (R. 43). Pursuant to Fed. R.
Civ. P. 23(c)(2) and (e), the court approved the notice of the
settlement to be provided to class members. (R. 44). At an
estimated cos: of over $4 million, the notice was mailed to
every valve recipient for whom an address was known and
was published in over 200 leading publications throughout the
world. (R. 162, Pines Affidavit Exs. A, B; R. 202 at 26). The
notice informed each class member of the opportunity to opt
out of the class. (R. 44, Exs. A, B).
The three petitioners—two valve recipients and the spouse
of one of them—are the named plaintiffs in an uncertified
State-wide class action filed in 1986 against the defendants in
the Pennsylvania Court of Common Pleas (Taylor v. Shiley,
Inc., No. 2087). In February 1992, petitioners received notice
of the class settlement in this case through their counsel, and
were thus expressly informed of their opportunity to exclude
themselves from the class. Notwithstanding the fact that they
had their own pending case against defendants, they elected
to remain in the class. Bowling v. Pfizer, Inc., 143 F.R.D. 141,
155-56 (S.D. Ohio 1992).
Petitioners state that the class notice “informed petitioners
that they could not object to. . . the proposed settlement if
they elected to opt out of the class.” (Pet. at 5). This is untrue.
On May 19, 1992, before the opt out deadline, the district
court told petitioners that they were free to opt out and also
press their objections to the settlement. (R. 140 at 28; R. 202
at 8). As the district court stated in its opinion, petitioners’
counsel “was free to have opted its clients out, and then could
2
Citations to the record are to the district court docket numbers.
. Petitioners state that the conditionally certified class was
broader than that alleged in the originai complaint (Pet. at 4), but they
fail to mention that the complaint was amended to allege the broader
class. (R. 47).
Aiba Gili Eran RRA Poca cet. WH Ney iki Ra Lt A ALAC elite
have voiced its objections to the proposed settlement at the
fairness hearing.” Bowling, 143 F.R.D. at 156. Petitioners
turned this opportunity down, as well as two other opportu-
nities—on June 9 and July 22, 1992—to opt out after they had
appeared and objected to the settlement. (R. 208 at 92-95;
R. 251 at 82-83).
Pursuant to Fed. R. Civ. P. 23(e), the district court con-
ducted a fairness hearing on the proposed settlement on June
5, 8 and 9 and July 22, 1992. Petitioners, other class members
and consumer advocacy groups were heard at length. As a
result of suggestions by the court and counsel, the initial set-
tlement agreement was substantially enhanced.* All class
members represented by counsel—except for petitioners—as
well as consumer advocate amici, then withdrew their objec-
tions. (See R. 251 at 56-61).
On August 19, 1992, the district court issued a 68-page
order finding that the settlement is “fair, adequate and rea-
sonable.” Bowling, 143 F.R.D. at 170. Judgment was entered
on September 10, 1992. (R. 255). Petitioners filed a notice of
appeal from that judgment on September 17, 1992. (R. 258).
The three petitioners were the only class members who con-
tinued to express dissatisfaction with the judgment approving
the settlement.° Yet petitioners did not ask any court to relieve
them personally from that judgment. Instead, petitioners—
who represent no one but themselves—-sought to overturn on
appeal the judgment that tens of thousands of their fellow
class members desired.
At no time prior to petitioners’ filing of a notice of appeal
did they move to intervene. Petitioners’ assertion that “the
' The settlement approved by the district court provides benefits
to class members worth at least $165 million and possibly more than
$215 million. The settlement, which is mischaracterized by petitioners,
is accurately described in the opinion of the district court. Bowling, 143
F.R.D. at 148-50.
‘ The petition for certiorari is brought solely on petitioners’ own
behalf and not on behalf of the uncertified Taylor class.
district court gave every indication that intervention was not
required” (Pet. at 7) is untrue. The district court treated them
as objecting class members, nothing more.
On September 25, 1992, eight days after they had filed a
notice of appeal, petitioners belatedly filed a motion in the
district court to intervene for purposes of appeal. (R. 265). By
memorandum decision dated November 9, 1992, the district
court concluded that it could not decide the motion to inter-
vene because the filing of the notice of appeal had divested it
of jurisdiction. (R. 297). Petitioners appealed from that deci-
sion as well. (R. 305).
On December 21, 1993, the Sixth Circuit affirmed the dis-
trict court’s order concluding that it lacked jurisdiction to rule
on a motion to intervene filed in the district court after a
notice of appeal. (Pet. App. at 6a). Petitioners have not sought
certiorari with respect to that decision.
Also on December 21, 1993, the Court of Appeals issued
the order for which certiorari is sought, which dismissed peti-
tioners’ principal appeal. The Court held that because the
petitioners “are unnamed class members who neglected to
intervene in the proceedings below, they lack standing to pur-
sue this appeal.” (Pet. App. at 1a). In support of its decision,
the Court cited Guthrie v. Evans, 815 F.2d 626, 627-28 (11th
Cir. 1987), Croyden Associates v. Alleco, Inc., 969 F.2d 675,
678-79 (8th Cir. 1992), cert. denied, 113 S. Ct. 1251 (1993),
and Walker v. City of Mesquite, 858 F.2d 1071, 1073-75 (Sth
Cir. 1988)—all of which held that non-party class members
do not have standing to appeal.
Petitioners then petitioned for rehearing en banc, relying—
as they do now—on the decision in Cohen v. Young, 127 F.2d
721 (6th Cir. 1942), and the supposed inconsistency between
that case and more recent unpublished decisions of the Sixth
Circuit. By letter dated February 1, 1994, the Court of
Appeals directed respondents to file a response, “and respond
particularly to the significance of Cohen ....” As
requested, respondents showed that Cohen was not only dis-
Sle ah stale ci a pala
i
tinguishable, but is also outdated in light of subsequent deci-
sions of this Court and the 1966 amendments to the class
action rules.®
On March 4, 1994, the Court of Appeals denied the petition
for rehearing en banc. The Court noted that the petition had
been circulated to all active judges of the Sixth Circuit, and
that “no judge . . . requested a vote on the suggestion for
rehearing en banc.” The Court further stated that the original
hearing panel had “further reviewed the petition for rehearing
and [had] conclude[d] that the issues raised in the petition
were fully considered upon the original submission and deci-
sion of the case.” (Pet. App. at 3a).
REASONS FOR DENYING THE WRIT
I. THE COURT OF APPEALS APPLIED SETTLED
PRINCIPLES OF APPELLATE STANDING ESTAB-
LISHED BY THIS COURT AND CONSISTENTLY
FOLLOWED BY THE COURTS OF APPEALS.
The issue raised in the petition has already been resolved
by this Court. In Marino v. Ortiz, 484 U.S. 301, 304 (1988),
the Court authoritatively ruled that “only parties to a lawsuit,
or those that properly become parties [by intervening], may
appeal an adverse judgment. . . .” The Court pointed out
that the Federal Rules of Appellate Procedure provide that
“[t]he notice of appeal shall specify the party or parties tak-
ing the appeal.” Fed. R. App. P. 3(c) (emphasis added).
Marino affirmed dismissal of an appeal by a group of white
police officers who appeared and objected to a proposed set-
tlement of a class action brought by Hispanic members of the
New York City Police Department. This Court held that the
officers lacked standing to appeal, notwithstanding their par-
Defendant-Appellees’ Memorandum in Opposition to Appel-
lants’ Petition for Rehearing En Banc, filed February 15, 1994.
ticipation in the proceedings below, because they “were not
parties to the underlying lawsuit, and because they failed to
intervene for purposes of appeal.” Jd. at 304.
Following Marino, every Court of Appeals to be presented
with an appeal from a class action judgment brought by non-
party class members has ruled that non-party class members—
like petitioners—do not have standing to appeal. Bow/ing v.
Pfizer, No. 92-3973 (6th Cir. 1993) (Pet. App. at la); Gottlieb
v. Wiles, 11 F.3d 1004 (10th Cir. 1993); Loran v.
Furr’s/Bishop’s Inc., 988 F.2d 554 (Sth Cir. 1993); Croyden
Associates v. Alleco, Inc., 969 F.2d 675, 679 (8th Cir. 1992),
cert. denied, 113 S. Ct. 1251 (1993); Walker v. City of
Mesquite, 858 F.2d 1071 (Sth Cir. 1988); Shores v. Sklar, 844
F.2d 1485 (11th Cir. 1988).
Thus, for example, the Eighth Circuit observed that
“Marin> provides substantial support for holding that
unnamed class members who object to a settlement must
move to intervene, and they will be denied standing to appeal
when they have not done so.” Croyden, 969 F.2d at 679.
Petitioners’ principal argument for certiorari is that there is
a supposed “split” among the Circuits. However, the cases
that petitioners cite either were decided prior to Marino, or
did not directly present the issue.
Not one of the post-Marino cases relied on by petitioners
granted non-party class members standing to appeal from a
judgment approving a settlement in a class action. In one case
cited by petitioners, Jn re VMS Limited Partnership Securities
Litigation, 976 F.2d 362 (7th Cir. 1992), the Seventh Circuit
held that non-party class members did not have standing to
appeal a post-settlement order implementing a settlement
agreement. The Court specifically stated that “we offer no
opinion” as to whether non-party class members would have
standing to appeal from a judgment approving the settlement.
976 F.2d at 368 n.8.
“
Pees ee ee ae on oe ee ee ey
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Similarly, Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3d
Cir. 1993), cited by petitioners, is tangential to the issue
raised here. Bell Atlantic involved the appellate standing of an
objecting shareholder in a shareholders’ derivative action.
The Court stated that “we need not decide whether different
rules apply to objector appellate standing in class and deriva-
tive suits.” 2 F.3d at 1307 n.4. Subsequently, the Tenth Circuit
thoroughly analyzed Bell Atlantic and concluded that it was
“inapposite” to the appellate standing of non-party class
members, who differ from plaintiffs in shareholder derivative
suits. Gottlieb, 11 F.3d at 1010.’
The final post-Marino case relied on by petitioners is Car-
lough v. Amchem Products, Inc., 5 F.3d 707 (3d Cir. 1993),
where the Court—without even citing Marino—said that class
members who timely moved to intervene would be able to
appeal from a final judgment. However, unlike this case, Car-
lough was not an appeal from a final judgment by non-party
class members who faiied to file a timely motion to intervene.
Rather, Carlough was an interlocutory appeal from the denial
of the class members’ motion to intervene; the Third Circuit
dismissed the appeal on the ground that the denial of the
motion to intervene was not immediately appealable. Thus,
Carlough did not squarely present the issue raised by the
petition.
7 The Tenth Circuit explained why derivative suit cases such as
Bell Atlantic are not on point:
“[C]ases holding that an unnamed plaintiff in a shareholder deriva-
tive suit under Rule 23.1 has standing to appeal are inapposite. See,
e.g., Bell Atlantic . . . . Rule 23.1 does not offer the same pro-
tective mechanisms offered by Rule 23. Unlike class actions under
Rule 23, in shareholder derivative suits under Rule 23.1, a pre-
liminary affirmative determination that the named plaintiffs will
fairly and adequately represent the interests of the other class mem-
bers is not a prerequisite to the maintenance of the action. . . . In
addition, there is no opt out provision in shareholder derivative
suits.”
Gottlieb, 11 F.3d at 1010-11.
10
It remains to be seen if the Third Circuit will find non-party
class members to have standing to appeal from a class action
judgment when that Court is actually presented with such an
appeal and is asked to consider the issue in light of Marino.
At the very least, because the Third Circuit has not yet had
occasion to apply Marino to an appeal from a final judgment
by a non-party class member who failed to file a timely
motion to intervene, this Court would benefit by allowing the
issue to mature. See United States v. Mendoza, 464 U.S. 154,
160 (1984) (indicating the benefits of permitting the Courts
of Appeals “to explore a difficult question before this Court
grants certiorari”); E.J. DuPont de Nemours & Co. v. Train,
430 U.S. 112, 135 n.26 (1977) (noting “the wisdom of allow-
ing difficult issues to mature through full consideration by the
courts of appeals”).
The Tenth Circuit recently surveyed the very same cases
relied upon by petitioners and found that “there is no true
conflict.” Gottlieb, 11 F.3d at 1009. The Court stated: “We
hold that standing [of a non-party class member to appeal] is
dependent upon a grant of intervention, a result which we
believe to be consistent with the rule in all of the circuits that
have directly addressed the issue... .” 11 F.3d at 1006
(emphasis added).
In short, the purported “conflict” relied on by petitioners is
an illusion. On appeals from final judgments in class actions,
the Courts of Appeals have uniformly held, subsequent to this
Court’s decision in Marino, that non-party class members do
not have standing to appeal. There is no reason for this Court
to grant review.
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3
11
Ii. THE DECISION BELOW IS SUPPORTED BY THE
TEXT OF THE FEDERAL RULES AND THE POLI-
CIES UNDERLYING CLASS ACTIONS SET FORTH
IN THIS COURT’S DECISIONS
The decision below is amply supported by the language and
underlying policies of the Federal Rules of Civil Procedure
and the Federal Rules of Appellate Procedure. In Marino, this
Court relied on the text of the Federal Rules of Appellate Pro-
cedure in holding that “only parties to a lawsuit, or those that
properly become parties, may appeal an adverse judgment.”
484 U.S. at 304 (emphasis added). As the Court stated, Fed.
R. App. P. 3(c) specifically requires that the notice of appeal
specify the “party or parties” taking the appeal. Jd.
This Court applied the same reasoning earlier this Term in
Izumi Seimitsu Kogyo Kabushiki Kaisha v. United States
Phillips Corp., 114 S. Ct. 425 (1993). There, the petitioner
was a non-party whose motion to intervene was denied by the
- Court of Appeals. This Court dismissed the writ of certiorari
as improvidently granted because the petitioner lacked stand-
ing to seek review. The court explained that the language of
the statute creating the certiorari jurisdiction of this Court—
28 U.S.C. § 1254(1)—speaks of “the petition of any party to
any civil or criminal case. . . .” (Emphasis added).
The decision below is also supported by the language of the
class action and intervention provisions of the Federal Rules
of Civil Procedure. Those provisions make clear that absent
intervention, class members are not Parties to the action, and
do not have the unqualified right to participate at every stage
of the litigation in the district court and on appeal.
Thus, Rule 23(d) provides that “the court may make appro-
priate orders . . . requiring, for the protection of the members
of the class or otherwise for the fair conduct of the action,
that notice be given. . . of the opportunity of members. . .
to intervene. . . .” The Rule further states that the Court
may “impos[e] conditions . . . on intervenors. .. .” As
12
shown by these provisions, the district court has broad dis-
cretion under Rule 23 to consider whether, and on what terms,
individual class members should be permitted to intervene
consistent with the prompt and efficient management of the
litigation. If class members were entitled to participate as par-
ties in all aspects of the action even without intervention, then
the provisions of Rule 23(d), giving the court authority upon
a proper showing to permit or deny intervention by class
members, and to impose conditions on intervenors, would be
superfluous.
Consistent with the language of the Federal Rules, the
Advisory Committee Notes on the 1966 Amendments to Fed.
R. Civ. P. 24 state that “[a] class member who claims that his
‘representative’ does not adequately represent him, and is
able to establish that Proposition with sufficient probability
. . Should, as a general rule, be entitled to intervene in the
action.” Thus, the Federal Rules contemplate that if non-party
class members wish to participate as parties in a class action,
they must first intervene.®
Moreover, automatically permitting all non-party class
members to appeal would be impractical and antithetical tu
the policies and purposes of Rule 23. Rule 23 sets forth a pro-
The Federal Rules distinguish between intervention and “enter-
ing an appearance through counsel.” Any clais member may “enter an
appearance through counsel,” Fed. R. Civ. P. 23(c)(2). This is not, how-
ever, the equivalent of intervention. As Professor Benjamin Kaplan, the
reporter to the Advisory Committee, explains:
“I read this ‘appearance’ as entitling counsel to receive the Papers
in the action to enable him to follow the case with a view to decid-
ing, é.g., whether he should move to intervene. If ‘appearance’ is
read as enabling the class member to be admitted automatically into
the action as a party, it would stand in odd contrast to intervention
in the action under Rule 24, which is not automatic and requires a
showing.”
Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of
the Federal Rules of Civil Procedure (1), 81 Harv. L. Rev. 356, 392 n.137
(1967).
13
cedure through which common issues can be efficiently liti-
gated in a single suit “when there are too many plaintiffs for
proper joinder.” Phillips Petroleum Co. v. Shutts, 472 U.S.
797, 809 (1985). The rule seeks to avoid multiplicity of activ-
ity by providing for a “ ‘representative’ suit to which some
members of the class are parties, [who] may bind members of
the class or those represented who were not made parties to
it.” Hansberry v. Lee, 311 U.S. 32, 41 (1940). As this Court
has explained:
“A federal class action is no longer ‘an invitation to join-
der’ but a truly representative suit designed to avoid,
rather than encourage, unnecessary filing of repetitious
papers and motions.”
American Pipe & Construction Co. v. Utah, 414 U.S. 538, 550
(1974). Accordingly, Rule 23 is structured to provide each class
member with “procedural due process protection[s]” without
being “fully a party in the traditional sense.” Shutts, 472 U.S.
at 808, 811-12.
The goals of manageability and efficiency would be com-
promised if each class member could individually decide to
appeal. As the Eleventh Circuit explained:
“A fundamental purpose of the class action is to render
manageable litigation that involves numerous members
of a homogeneous class, who would all otherwise have
access to the court through individual lawsuits. . . . If
each class member could appeal individuaily, the liti-
gation could become unwieldy. Thus, allowing direct
appeals by individual class members who have not inter-
vened in the district court would defeat the very purpose
of class action lawsuits.”
Guthrie v. Evans, 815 F.2d 626, 629 (11th Cir. 1987) (empha-
sis added); accord Croyden, 969 F.2d at 678; Walker, 858 F.2d
at 1074 (a non-party class member may not appeal absent inter-
vention in the court below; “a contrary rule would result in the
14
frustration of the purpose behind class litigation”); Gottlieb, 11
F.3d at 1009 (“If individual appeals without formal intervention
were to be permitted, the class action would break down under
the burden of unpredictable and unlimited individual actions.
Such a result would directly conflict with the goals of Rule 23
and would eviscerate the utility of the class action suit.”).
The Courts of Appeals have also pointed out that permitting
appeals by non-party class members would be inconsistent
with the representative nature of class actions. Croyden, 969
F.2d at 678; Walker, 858 F.2d at 1073; Guthrie, 815 F.2d at
628. The problem is underscored by this case. The class rep-
resentatives, who were determined by the district court to be
adequate, are satisfied with the judgment and want its bene-
fits now. Petitioners, who represent no one but themselves,
seek to overturn that judgment against the wishes of the class
representatives and the overwhelming majority of the class.
“It is particularly appropriate” to dismiss an appeal by a non-
party class member when the “class member’s challenge to
the adequacy of a settlement is contrary to the view of all the
other class members.” Croyden, 969 F.2d at 680.
Moreover, automatically permitting appeals by non-party
class members without intervention is unnecessary to protect
the class members’ individual interests. In Rule 23(b)(3)
actions, such as this, class members can protect their interests
by exercising their right to Opt out and pursue their own
actions. Croyden, 969 F.2d at 678; Guthrie, 815 F.2d at 628;
Gottlieb, 11 F.3d at 1009. Alternatively, if individual class
members believe that they are not represented adequately by
the class representatives, they can protect their interests by
moving to intervene; or they can seek to avoid the effect of an
adverse judgment by collateral attack. Croyden, 969 F.2d at
678; Walker, 858 F.2d at 1073-74; Guthrie, 815 F.2d at 628.
“With these legal avenues available for individual class mem-
bers, there is no need to permit an individual to appeal a judg-
ment with which the class representatives, and presumably the
:
8
q
:
4
15
majority of the class members are satisfied.” Guthrie, 815
F.2d at 628; Croyden, 969 F.2d at 678.
Petitioners ignore both the language of the Federal Rules
and the policies underlying class actions set forth in decisions
of this Court and the Courts of Appeals.° Instead, they incor-
rectly assert that “an appeal is often the only mechanism by
which an absent class member can protect his or her rights”
and that the right to opt out does not provide adequate pro-
tection because class claims are “frequently” too small to jus-
tify individual litigation. (Pet. at 14). But neither the Court
below nor any other Circuit has held that a class member may
never appeal; they merely held that intervention is a precon-
dition. Certainly, any class member with the wherewithal to
appeal will also have the wherewithal to file a motion to
intervene. Petitioners’ argument is also beside the point on
the facts of this case: the petitioners did have their own pend-
ing separate action against the defendants, which they had
been pursuing since 1986; they had repeated opportunities to
opt out in order to continue pursuing that action; and they
chose not to avail themselves of those opportunities.
Next, petitioners state that the intervention requirement will
have “the practical effect of drastically limiting the avail-
ability of appellate review” of judgments in class actions.
(Pet. at 18). The gravamen of petitioners’ argument is that
motions to intervene will often be denied (a) because the class
members are already adequately represented by the class rep-
resentatives, (b) because the class members can protect their
rights by opting out, or (c) because the class members have
their own separate action, as petitioners do here. (Pet. at
20-22).
Petitioners rely heavily on a law review note, Note, The Appeal-
ability of Class Action Settlements by Unnamed Parties, 60 U. Chi. L.
Rev. 933 (1993). The Tenth Circuit has stated that it “disagree[s] with
this student’s analysis,” Gottlieb, 11 F.3d at 1012 n.7, as does every Court
of Appeals to have squarely addressed the issue since Marino was
decided.
16
However, when class members are already adequately rep-
resented or have alternative means of protecting their rights—
and a motion to intervene is denied on that ground—there is
no reason to give them standing to appeal. Thus, the fact that
many intervention motions may properly be denied weighs
strongly against granting all class members standing to
appeal.
In addition, petitioners’ generalizations about whether
motions to intervene will be granted or denied are speculative
at best. In this case, it is impossible to determine whether
intervention would have been granted or denied, because peti-
tioners failed to file a motion to intervene until after the dis-
trict court had been divested of jurisdiction. Thus, a concrete
factual setting is missing, and petitioners are forced to rely on
unsupported speculation.
Petitioners also speculate that requiring intervention as a
prerequisite to appeal “will result in greatly protracted and
burdensome class action litigation.” (Pet. at 23). But this
theory is spun from petitioners’ false assumption that class
members would have to move to intervene as soon as they
receive notice of the action. United Airlines, Inc. v. McDon-
ald, 432 U.S. 385 (1977), holds to the contrary. In that case,
this Court held that a motion to intervene solely for purposes
of appeal may be timely even if made after judgment. Accord
Marino, 484 U.S. at 304. Petitioners do not explain why the
procedure recommended by this Court would be an undue
burden on litigants or the courts. Nor do they present any evi-
dence that the Fifth, Sixth, Eighth, Tenth and Eleventh Cir-
cuits, which have all required intervention as a prerequisite to
appeal, have encountered anything resembling the parade of
horribles that petitioners have conjured up.
In short, the decision below is firmly rooted in the language
of the Federal Rules, the decisions of this Court, and the poli-
cies that underlie class actions. Petitioners’ arguments to the
contrary are without merit.
‘
;
3
i
é
:
17
Ill. THE UNUSUAL FACTS OF THIS CASE MAKE IT
UNSUITABLE FOR REVIEW BY THIS COURT
Even if the issues raised in the petition were otherwise wor-
thy of this Court’s attention, the unusual facts of this case—
which are unlikely ever to be repeated—make it unsuitable
for certiorari. “A petition for a writ of certiorari will be
granted only when there are special and important reasons
therefor.” Supreme Court Rule 10.1. As this Court has stated:
“{T]his Court does not sit to satisfy a scholarly interest
. . Nor does it sit for the benefit of the particular lit-
igants. . . .. ‘Special and important reasons’ imply a
reach to a problem beyond the academic or the
episodic.”
Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70,
74 (1955). Therefore, the issue must be of broad importance to
the public, not merely to the litigants. Ticor Title Ins. Co. v.
Brown, 114 S. Ct. 1359, 1362 (1994); Layne & Bowler Corp. v.
Western Well Works, Inc., 261 U.S. 387, 393 (1923).
An unusual set of facts renders this case unworthy of this
Court’s discretionary review:
* Petitioners decided not to opt out after they studied the
terms of the proposed settlement. Yet they seek to overturn on
appeal a settlement that they deliberately chose to join. Such
circumstances, if not unprecedented, are rare indeed.'®
” Many of the decided cases, including Guthrie, Croyden and
Walker, have concerned classes that were certified under Rule 23(b)(2)
and thus did not provide class members with the opportunity to opt out.
In other cases, such as Gottlieb, the class was certified under Rule
23(b)(3) before settlement was reached; thus, the class members did not
know the settlement terms when they had to decide whether to opt out.
In Carlough, it remains to be seen whether individual class members will
appeal should the pending proposed settlement be approved.
18
¢ Petitioners already had their own separate lawsuit (Tay-
lor) pending against defendants in the Pennsylvania Court of
Common Pleas, which they had been pursuing since 1986." If
petitioners thought that they were “well situated to obtain a
sizable recovery” in Taylor (Pet. at 3), they were free to opt
out and pursue that case. As petitioners admit (Pet. at 22
n.18), this fact casts doubt on whether a timely motion to
intervene by petitioners would have succeeded. This high-
lights the fact that petitioners’ rights were adequately pro-
tected and that they have not been deprived of any substantive
right.
* The district court in this case gave petitioners the oppor-
tunity to opt out and also object to the settlement at the fair-
ness hearing. Indeed, the court gave petitioners second and
third opportunities to opt out after their objections were
heard. These generous offers—far more than what was
= Petitioners misstate the course of proceedings in the Taylor case.
Petitioners waited three years after filing Taylor to move for class cer-
tification, and have never succeeded in obtaining certification. In 1987,
the Pennsylvania Court of Common Pleas granted defendants’ prelimi-
nary objections to the Taylor complaint as to all but two claims (inten-
tional infliction of emotional distress and Magnuson-Moss Act warranty
claims). Subsequently, defendants were granted summary judgment on all
claims, including a claim of intentional misrepresentation, in another
Pennsylvania case. Brinkman v. Shiley, Inc., 732 F. Supp. 33 (M.D. Pa.),
aff’d, 902 F.2d 1558 (3d Cir. 1989); accord Angus v. Shiley Inc., 989 F.2d
142, 147 (3d Cir. 1993). Based on Brinkman and other developments in
Pennsylvania law—which conclusively negated any cause of action—
defendants then moved for summary judgment. The summary judgment
motion was pending at the time the settlement below was approved. Peti-
tioners have admitted—contrary to their assertions in the petition for cer-
tiorari (Pet. at 3)—that their claims in Pennsylvania probably would not
survive summary judgment. (R. 335 at 7; R. 334, Ex. C-1).
In the eight years since Taylor was filed, petitioners have not taken a
single deposition. (See R. 225, Ex. 4). Petitioners’ failure to prosecute the
Taylor action is due to no fault of defendants: as petitioners have admit-
ted to the Pennsylvania court, defendants’ counsel has been “ ‘cooper-
ating’ and using its ‘best efforts’ to facilitate plaintiffs’ discovery.” (R.
225, Pxs. 1-3).
BREEN MS OD OE itl
LIE EPUB SMES LEAD: LD RAMA LOLLY WRIA Nh Heb NO ical Bide? Sah basse
tle,
19
required by the Federal Rules—were rejected. Petitioners
chose to remain in the class and seek to disrupt and delay the
settlement that the class representatives and all other class
members desire.
* Due to petitioners’ neglect, no record has been developed
as to the propriety of intervention in this case. Petitioners
failed to file a motion to intervene until after they had filed a
notice of appeal which divested the district court of juris-
diction. If they had filed a timely motion to intervene and
intervention had been granted, the question of standing to
appeal would never have arisen. If, on the other hand, a
timely motion to intervene had been denied, this Court as well
as the Court of Appeals would have had the benefit of the rea-
sons given by the district court for denying intervention. As
the case stands, petitioners call upon the Court to assess their
issue in a vacuum.
In sum, the unusual and atypical facts of this case make it
unsuitable for certiorari review.
IV. PETITIONERS’ “DUE PROCESS” ARGUMENT
WAS NOT RAISED BELOW, IS MERITLESS AND
DOES NOT DESERVE REVIEW BY THIS COURT
Petitioners argue that the dismissal of their appeal violated
their constitutional right to due process of law. However, this
argument was not raised below, and it is settled that “ordi-
narily, this Court does not decide questions not raised or
resolved in the lower court.” Youakim v. Miller, 425 U.S. 231,
234 (1976); accord Delta Air Lines, Inc. v. August, 450 U.S.
346, 362 (1981) (“question . . . not raised in the Court of
Appeals. . . is not properly before us).'”
? ‘ 228 . en@
7 On page 5 of their petition for rehearing en banc, petitioners
included rhetoric that in dismissing their appeal, the Sixth Circuit “cre-
ated the unavoidable impression that [it] not only was biased in favor of
Appellees, but that it was not bound by. . . Appellants’ right to due pro-
cess under the Constitution.” This is not sufficient to preserve the issue
for review by this Court. First, “[i]t has been the traditional practice of
Moreover, as set forth below, petitioners’ argument is based
on contested factual allegations (which this Court is ill-
equipped to resolve) and on a misunderstanding of the local
rules of the Sixth Circuit (which are best left for the Sixth
Circuit to interpret for itself).
Petitioners first contend that they were “lulled into a false
sense of security” by the district court, which treated them as
“de facto intervenors.” (Pet. at 26). Nothing of the sort took
place. Petitioners were treated as objecting class members, no
more. At no time did the district court indicate that petition-
ers were parties to the action, or that they would be treated as
intervenors.
In Marino, this Court rejected the proposition that appear-
ing at a fairness hearing to object to a settlement—as peti-
tioners did—-confers standing to appeal. 484 U.S. at 304. One
thing is certain: petitioners’ allegation that they were “iulled
into a false sense of security” does not present any serious,
broadly applicable issue deserving of this Court’s attention.
Petitioners next assert that they had a constitutional right to
expect the Sixth Circuit to follow two of its older, pre-Marino
published decisions,’ notwithstanding this Court’s subsequent
decision in Marino and the Sixth Circuit’s more recent deci-
sions holding that a non-party class member lacks standing to
appeal. See Police Officers for Equal Rights v. City of Colum-
bus, 865 F.2d 260 (Table) (6th Cir. 1988) (unpublished, text
available on LEXIS and WESTLAW); Thompson v. Kentucky,
this Court. . . to decline to review claims raised for the first time on
rehearing in the court below.” Wills v. Texas, 114 S. Ct. 1867, 1867
(1994) (O°CONNOR, J , concurring in denial of certiorari). Second, a
“vague appeal to constitutional principles does not preserve. . . due pro-
cess claims.” Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 77
(1988).
13 Cohen v. Young, 127 F.2d 721 (6th Cir. 1942); Sertic v. Cuya-
hoga, Lake, Geauga and Ashtabula Counties Carpenters District Coun-
cil, 459 F.2d 579 (6th Cir. 1972).
21
827 F.2d 770 (Table) (6th Cir. 1987) (unpublished, text avail-
able on LEXIS and WESTLAW).
Petitioners proceed under the misapprehension that unpub-
lished decisions of the Sixth Circuit may not be relied on. The
Rules of the Sixth Circuit specifically provide that “[i]f coun-
sel believes. . . that an unpublished disposition has prece-
dential value in relation to a material issue in a case and that
there is no published opinion that would serve as well, such
decision may be cited .. . .” Sixth Circuit Rule 24(c)
(emphasis added). Indeed, the Sixth Circuit routinely cites its
unpublished decisions as precedent."
While petitioners state that “it is difficult to state precisely
where the Sixth Circuit stands” (Pet. at 15), the Tenth Circuit
had no trouble determining the Sixth Circuit’s position, based
on the Sixth Circuit’s unpublished decision in Police Officers:
“We. . . note that the Sixth Circuit recently followed
Guthrie, holding that unnamed class members had no
Standing to appeal from the approval of a settlement.
Police Officers for Equal Rights v. City of Columbus,
865 F.2d 260 (6th Cir. 1988) (unpublished disposition,
text available on LEXIS).”
Gottlieb, 11 F.3d at 1010 (footnote omitted). |
In any event, the Sixth Circuit is best positioned to deter-
mine the current state of the law in the Sixth Circuit. In its
initial decision and then on rehearing, the Sixth Circuit deter-
mined that its pre-Marino decisions do not control this case.!5
se See, e.g., Preslar v. Secretary of Health and Human Services, 14
F.3d 1107, 1112 (6th Cir. 1994); United States v. Tipton, 11 F.3d 602, 607
(6th Cir. 1993), cert. denied, __ S.Ct. ___, 1994 WL 213324 (June 13,
1994); United States v. Reece, 994 F.2d 277, 278-79 (6th Cir. 1993);
Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-05 n.5 (6th
Cir. 1992).
= Cohen was a shareholder derivative suit brought on behalf of a
corporation; accordingly, there was no opportunity for the shareholder-
22
No judge on the Sixth Circuit considered the issue deserving
of en banc consideration. Petitioners do not raise any issue of
general applicability and public importance requiring this
Court’s review.
Petitioners’ constitutional argument suffers from another
infirmity as well. Petitioners state that when there is a right
to appeal, that right may not arbitrarily be denied. However,
there is no right to appeal when an appellant lacks standing to
appeal.'® Petitioners’ argument, therefore, is inapposite.
plaintiff to opt out. Because “there is no opt out provision in shareholder
derivative suits,” such cases are “inapposite.” Gottlieb, 11 F.3d at 1010-11.
Similarly, Sertic did not directly present the issue here. Included in the
Sertic appeal was an appeal from the district court’s denial of motions to
intervene; the Court held that intervention should have been granted. 459
F.2d at 581, 583. Here, in contrast, petitioners failed to move intervene
until after their appeal on the merits had deprived the district court of
jurisdiction; the Court of Appeals affirmed the district court’s denial of
the belated motion; and petitioners do not seek review of that decision.
” Contrary to petitioners’ assertion (Pet. at 28), 28 U.S.C. § 1291
simply grants appellate jurisdiction to the Courts of Appeals. It does not
do away with settled principles of appellate standing.
23
CONCLUSION
It is respectfully requested that the petition for writ of cer-
tiorari be denied.
Dated: New York, New York
July 1, 1994
Respectfully submitted,
David Klingsberg
Counsel of Record
KAYE, SCHOLER, FIERMAN,
HAYS & HANDLER
425 Park Avenue
New York, New York 10022
(212) 836-8000
Attorneys for Respondents
Pfizer Inc and
Shiley Incorporated
Of counsel:
James R. Adams
FROST & JACOBS
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
APPENDIX
la
APPENDIX
PERTINENT PROVISIONS OF THE RULES INVOLVED
Rule 23 of the Federal Rules of Civil Procedure in pertinent
part provides:
(a) Prerequisites to a Class Action. One or more mem-
bers of a class may sue or be sued as representative par-
ties on behalf of all only if (1) the class is so numerous
that joinder of all members is impracticable, (2) there are
questions of law or fact common to the class, (3) the
claims or defenses of the representative parties are typ-
ical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect
the interests of the class.
(b) Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of sub-
division (a) are satisfied, and in addition:
* * *
(3) the court finds that the questions of law or fact
common to the members of the class predominate
over any questions affecting only individual mem-
bers and that a class action is superior to other
available methods for the fair and efficient adjudi-
cation of the controversy.
(c) Determination by Order Whether Class Action to
be Maintained; Notice; Judgment; Actions Conducted
Partially as Class Actions.
* * *
(2) In any class action maintained under subdivi-
sion (b)(3), the court shall direct to the members of
the class the best notice practicable under the cir-
cumstances, including individual notice to all mem-
bers who can be identified through reasonable
2a
effort. The notice shall advise each member that (A)
the court will exclude the member from the class if
the member so requests by a specified date; (B) the
judgment, whether favorable or not, will include all
members who do not request exclusion; and (C) any
member who does not request exclusion may, if the
member desires, enter an appearance through
counsel.
* * *
(d) Orders in Conduct Actions. In the conduct of
actions to which this rule applies, the court may make
appropriate orders: . . . (2) requiring, for the protection
of the members of the class or otherwise for the fair con-
duct of the action, that notice be given in such manner as
the court may direct to some or all of the members. .
of the opportunity of members. . . to intervene and pre-
sent claims or defenses, or otherwise to come into the
action; (3) imposing conditions on the representative
parties or On intervenors. .. .
(e) Dismissal or Compromise. A class action shall not
be dismissed or compromised without the approval of the
court, and notice of the proposed dismissal or compro-
mise shall be given to all members of the class in such
manner as the court directs.
Rule 24 of the Federal Rules of Civil Procedure in pertinent
part provides:
(a) Intervention of Right. Upon timely application any-
one shall be permitted to intervene in an action: . . . (2)
when the applicant claims an interest relating to the
property or transaction which is the subject of the action
and the applicant is so situated that the disposition of the
action may as a practical matter impair or impede the
applicant’s ability to protect that interest, unless the
3a
applicant’s interest is adequately represented by existing
parties.
(b) Permissive Intervention. Upon timely application
anyone may be permitted to intervene in an action:
. . . (2) when an applicant’s claim or defense and the
main action have a question of law or fact in common.
. . In exercising its discretion the court shall consider
: whether the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties.
Rule 3 of the Federal Rules of Appellate Procedure in per-
tinent part provides:
(c) Content of the Notice of Appeal. A notice of appeal
must specify the party or parties taking the appeal by
naming each appellant in either the caption or the body
of the notice of appeal. . . . Ina class action, whether
or not the class has been certified, it is sufficient for the
notice to name one person qualified to bring the appeal
as representative of the class.
digit a, Cigulbsak dott
sail Wonkcndr Auli easeas
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.