# Opposition Brief — Reilly v. Tucson Electric Power Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 1220

## Text

No. 93-1697

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IN THE

Supreme Court of the United States

OctToser Term, 1993

PATRICIA REILLY,
Petitioner,

vs.
ABBEY & ELLIS, et al., and
TUCSON ELECTRIC POWER COMPANY,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF RESPONDENTS JOHN V. TORRISI,
ET AL., IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI

ARTHUR N. ABBEY
Counsel of Record

ABBEY & ELLIs

212 East 39th Street

New York, New York 10016
(212) 889-3700

ME Lvyn I. WeEtss

Mi.sperc Weiss BersHAD HyNEs
& LERACH

One Pennsylvania Plaza

New York, New York 10119

(212) 594-5300

STANLEY R. WOLFE

BERGER & MONTAGUE, P.C.
1622 Locust Street

Philadelphia, Pennsylvania 19103
(215) 875-3000

Counsel for Respondents
John V. Torrisi, et al.

Foprama Court, U.S Fo

TABLE OF CONTENTS

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STATEMENT OF JURISDICTION.............
STATEMENT OF THE CASE.................
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B. Background Of The Case ...............
C. The Notice And Settlement Hearing ......
D. The Decision Of The Court Of Appeals...
REASONS FOR DENYING THE PETITION ....
A. The Court Of Appeals’ Decision Is Not In
Conflict With Any Decision Of This Court
Or Of Any Other Court Of Appeals......
B. The Notice Properly Informed Class
Members About The Settlement And This
Case Does Not Present Special Or
Important Reasons For Granting Certiorari

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TABLE OF AUTHORITIES
Cases

Affiliated Ute Citizens of Utah v. United States,
ah a ES Ee

Bennett v. Behring Corp., 96 F.R.D. 343 (S.D.
4 a COS ay Set Sy

Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975),
cert. denied, 429 U.S. 816 (1976) ............

Braxton v. United States, 500 U.S. 344 (1991)....

Cannon v. Texas Gulf Sulfur Co., 55 F.R.D. 308
ee i Soe os Here tn eee

Eisen v. Carlisle of Jacquelin, 417 U.S. 156
| RE Fe a eee

Green v. Occidental Petroleum Corp., 541 F.2d
OO Gey ves oss dvsebweee.

Grunin v. International House of Pancakes, 513
F.2d 114 (8th Cir.), cert. denied, 423 U.S. 864
NOSE cay Loa ietx spe ebees is ss

In re Corrugated Container Antitrust Litigation,
643 F.2d 195 (5th Cir.), cert. denied, 456 U.S.
ET RTs eee a

In re Equity Funding Corp. of American
Securities Litigation, 603 F.2d 1353 (9th Cir.
BES IS Ot eae ee

Marshall v. Holiday Magic, Inc., 550 F.2d 1173
Ns eon ass oh ak oy 5 600 a<s

Page

10

10

10

7,8

iv

Mullane v. Central Hanover Bank & Trust Co.,
ee ee I a Fi gici SX kw Gade aries

Oswald v. McGarr, 620 F.2d 1190 (7th Cir. 1980)

National Labor Relations Board v. Pittsburgh
Steamship Co., 340 U.S. 498 (1951) ..........

Rice v. Sioux City Memorial Park Cemetery, Inc.,
a oak en eae ahaha ya.

Rolf v. Blyth, Eastman Dillon & Co., Inc., 570
ee ee I I a dy ds een ee sane ees

Rolf v. Blyth, Eastman Dillon & Co., Inc., 637
if pf fo ee ee os eer

Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370
A go aE Ae eee

Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
(N.D. Cal 1978), aff'd, 645 F.2d 699 (9th
Cir.), cert. denied, 454 U.S. 1126 (1981)......

Weinberger v. Kendrick, 698 F.2d 61 (2nd Cir.
1982), cert. denied, 464 U.S. 818 (1983) ......

Other Authorities:
ee eres Se ccs atu oka kee
13 J. Moore, H. Bendix, B. Ringle and K. Shirey,

Moore’s Federal Practice, § 10.41 at S.C. 10-47
MC eC a oo a acres see ees

Page

12

1]

10

10

passim

8, 9

12

No. 93-1697

IN THE

Supreme Court of the United States

Ocrosek TERM, 1993

PATRICIA REILLY,
Petitioner,
vs.

ABBEY & ELLIS, et al., and
TUCSON ELECTRIC POWER COMPANY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF RESPONDENTS JOHN V. TORRISI,
ET AL., IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

a a

Respondents John V. Torrisi, et al. (“plaintiffs-respondents”)’
respectfully submit this brief in opposition to the petition for
a writ of certiorari of Patricia Reilly in this action.

' Pursuant to Rule 24.1, the parties to this proceeding in the United States
Court of Appeals for the Ninth Circuit were John V. Torrisi, plaintiff-appellee;
James Lazar and Patricia Reilly, objector-appellants; and Tucson Electric Power
Company, Thomas C. Weir, Sam G. Minter, Joseph B. Wilcox, Kenneth L.
Saul, and J. Luther Davis, defendants-appellees.

Although Patricia Reilly's petition to this Court lists Abbey & Ellis and
numerous other law firms as respondents, those law firms were not parties
(Footnote continued)

STATEMENT OF JURISDICTION

Petitioner purports to invoke the jurisdiction of this Court pur-
suant to 28 U.S.C. 1254(1).

STATEMENT OF THE CASE
A. Introduction

Petitioner Reilly has not — and cannot — set forth any cogent
reasons why her petition for certiorari should be granted in this
case. The so-called “notice” issue presented for plenary review
simply does not present an unsettled question of federal law.
The Court of Appeals decision below is not in conflict with any
decision of this Court or of any Court of Appeals; in fact, it is
entirely consistent with other Courts of Appeals’ decisions. As
shown herein, the Court of Appeals’ decision was correct and
this case does not present any special or important reasons for
granting certiorari.

Petitioner’s ad hominem attacks on plaintiffs’ counsel reflect
petitioner’s perceived personal grievances regarding issues which
are not properly before this Court. Such attacks are unworthy
of the traditions of this Court and are belied completely by the
record in this matter. Most of petitioner’s statement of the case
and argument contains inaccurate factual averments, improper
inferences and references to facts outside the record. An analysis
of the uncontroverted facts in the record shows that there is no
basis for this petition and certiorari should be denied.

B. Background Of The Case

The consolidated federal court class actions, the settlement
of which is challenged by the petitioner, were commenced in

to the proceedings below. Those law firms were counsel to John V. Torrisi and
the other plaintiffs-appellees in this action. We respectfully request that the
Court correct the erroneous caption used by petitioner to reflect that “John
V. Torrisi, et al.” rather than “Abbey & Ellis, et al.” are the proper respondents.

the Spring and Summer of 1989 against Tucson Electric Power
Company (“TEP” or the “Company”) and certain of its officers
and directors. The actions were brought on behalf of purchasers
of TEP common stock. The events which precipitated the
lawsuits were the resignation of the Company’s Chairman and
Chief Executive Officer under a cloud of allegations that he im-
properly sold TEP common stock on the basis of inside infor-
mation, public disclosure of the Company's worsening finan-
cial condition, TEP’s statement that it was considering cutting
its dividend and the precipitous drop in the market price of TEP
common stock. Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370,
1373, 1377 (9th Cir. 1993). Generally, plaintiffs alleged that
defendants violated the federal securities laws by misrepresent-
ing the financial condition of TEP and that as a result the market
price of TEP common stock was artificially inflated and plain-
tiffs and the members of the Class were damaged by reason of
their purchases of TEP common stock at artificially inflated
prices.

After these actions were filed, TEP’s financial condition con-
tinued to deteriorate. TEP ultimately eliminated its stock
dividends. By 1991, TEP declared a moratorium on debt
payments, was negotiating with creditors to restructure its debt
and had an involuntary petition in bankruptcy filed against it.
Id. at 1376. At the same time, TEP was seeking a rate increase
from the regulators at the Arizona Corporations Commission. Id.

Against this backdrop of impending financial doom, plain-
tiffs negotiated the $30 million settlement at issue in this peti-
tion. The settlement was the product of months of hard fought
negotiations. As the Court of Appeals found, this settlement was
fair, reasonable and adequate standing on its own and in light
of the circumstances under which it was negotiated.

First, the Court of Appeals noted that the $30 million “was
the maximum amount of available insurance, and the only
significant source of money to fund the settlement.” Id. at 1373.’

? The record supports the conclusion that the Company could not contribute
either cash or equity to the settlement because its creditors would not permit
(Footnote continued)

Second, TEP’s financial condition was precarious and this set-
tlement was critical to a reorganization of the Company out-
side of Chapter 11. Jd. at 1376. If a settlement was not reached,
it was likely that TEP would have filed for bankruptcy, “which
would have left little if anything for class members.” Id.

Third, defendants had a motion for summary judgment pend-
ing at the time the settlement was reached. Plaintiffs had not
established liability and “the defendants were asserting defenses
which had to be taken seriously.” Id. at 1375.

C. The Notice And Settlement Hearing

On December 11, 1991 the District Court entered an Order
authorizing notice of the proposed settlement to be mailed to
known class members (the “Notice”) and that a summary notice
of the proposed settlement be published in the Wall Street Jour-
nal and The New York Times. Id. at 1373. That same Order
also scheduled a hearing for February 20, 1992 to consider
whether to approve the proposed settlement and class counsel’s
request for attorneys’ fees.

Pursuant to that Order, on January 6, 1992 a copy of the
Notice was mailed to 76,700 individual stockholders and to 277
brokerage firms, banks and institutions which held shares in their
street names. Id. An additional 36,000 notices were mailed to
beneficial owners of shares held in street name by the brokerage
firms, banks and institutions. Jd. A summary notice also was
published in the national and international editions of the Wail
Street Journal and The New York Times. Ultimately over 113,000
Notices were mailed. Id.

The Notice that was sent to class members described the litiga-
tion, summarized the terms of the $30 million settlement and
set forth the formula that would be used for determining what
each Class member who filed a valid proof of claim would

it to do so and that the net worth of the individual defendants was insubstan-
tial in light of the potential damages. Moreover, the insurers had raised substan-
tial defenses to any payment under the policies. Id. at 1375.

receive from the settlement fund. The Notice explained in full
the basis for plaintiffs’ counsel’s decision to settle the case in-
cluding TEP’s precarious financial condition, the risk and ex-
pense of further litigation, and the defenses raised by TEP. In
this regard, the Notice specifically stated:

Counsel-for class plaintiffs believe that the settlement
of the class actions described in this notice confers
substantial benefits to the settlement class and each
of its members, without the additional cost, uncer-
tainty, and delay that would result if the class actions
were to proceed against the class defendants through
trial and appeal.

Lastly, the Notice advised class members that they had the right
to opt out of the class, that they could object to the proposed
settlement as well as plaintiffs’ counsel’s application for attorneys’
fees and that they had the opportunity to review more detailed
papers in the case and speak with plaintiffs’ counsel.

At the settlement hearing on February 20, 1992, the District
Court carefully considered and eventually rejected the argu-
ments raised in each of the 20 objections to the proposed settle-
ment. The District Court permitted all class members to be
heard at the hearing irrespective of their failure to file written
objections and accepted for consideration belated written ob-
jections, thus obviating any possible claim of prejudice to class
members.’

° Petitioner is in error in arguing that the District Court entered its final judg-
ment and order of dismissal approving the settlement prior to the settlement
hearing (Petition at 9). As is the regular practice in many courts, class counsel
filed a proposed form of order with the Clerk of the Court prior to the settle-
ment hearing. The District Court did not sign the final judgment and order
of dismissal until all of the objectors were heard, as is evident by the signature

page of the Order. (Petition at 27a). As set forth by the Court of Appeals: -

..-The record shows that the District Court received and con-

sidered objections filed by the few shareholders who rejected the

settlement, and listened to the objections of those who chose to
(Footnote continues)

The District Court approved the settlement as fair, reasonable
and adequate after considering carefully TEP’s precarious finan-
cial condition, the effect of a bankruptcy on class members’
claims, the limited assets available to satisfy a judgment or fund
a settlement despite plaintiffs’ efforts to obtain an equity con-
tribution from TEP, the fact that market losses are not an ac-
curate measure of damages on a Rule 10b-5 claim and the
availability of an opt-out right to all class members.

In connection with plaintiffs’ counsel’s application for an
award of attorneys’ fees equal to 30% of the settlement fund,
the District Court considered the result achieved, the hourly rates
charged, plaintiffs’ counsel's specialized experience in class ac-
tion cases and that class counsel had performed commendably
in promptly settling the litigation in getting whatever assets were
available from an “almost bankrupt utility.” Following the Ninth
Circuit’s standard in common fund cases, the District Court
reduced the requested fees from 30% to 25% of the fund ob-
tained for the class and declined to award any interest on the
fees.

D. The Decision of the Court of Appeals

The Ninth Circuit affirmed the District Court’s approval of
the settlement and its order awarding attorneys’ fees. Among
other things, the Ninth Circuit held that the Notice sent to class
members was adequate and that the content of the Notice did
not violate due process, that the timing of the Notice did not
violate due process or Rule 23, that the settlement was fair,
reasonable and adequate under Rule 23, that the award of at-
torneys’ fees to class counsel was fair and reasonable, that the
settlement hearing procedures were proper and that the crea-
tion of two subclasses was appropriate.

With respect to the notice issue raised in this petition, the
Court of Appeals found that the content of the Notice sent to

appear and argue at the hearing. Only after carefully reviewing
all of the objections and considering relevant matters pertaining
to the fairness of the settlement did the District Court approve
it. Id. at 1377.

class members did not violate due process. Specifically, the Court
found that the settlement Notice stated that the aggregate
amount of the settlement was $30 million, that each class
member's recovery will be proportional and that the Notice prop-
erly described the formula for computing each Class member's
share of the settlement fund. In holding that this Notice was
adequate, the Court of Appeals stated:

In Marshall v. Holiday Magic, Inc., 550 F.2d 1173 (9th
Cir. 1977), objectors to the settlement of a class ac-
tion made the same argument Lazar and Reilly make
here. They “argue[{d] that the notice [of a proposed
settlement and hearing on it) did not fairly apprise
class members of their positions because it did not
specify their potential recovery.” Id. at 1177. We stated
that their potential recovery was “a matter of conjec-
ture since it was unknown how many class members
would opt-out or submit claims.” Id. at 1177-78. We
held that the aggregate amount of the proposed set-
tlement and the formula for computing recoveries was
all that was required. Jd. at 1178.

Id. at 1374.

As shown herein, that holding was correct and the petition
for certiorari should be denied.

REASONS FOR DENYING THE PETITION

The instant petition does not satisfy the standards for accept-
ing plenary review. Rule 10 of this Court’s Rules provides in per-
tinent part that certicrari shall be granted “only when there are
special and important reasons therefor” — for example, when
a decision of e Court of Appeals is in conflict with a decision
of this Court or another Court of Appeals, or when a Court of
Appeals has decided an important question of federal law which
has not been, but should be, settled by this Court. None of these
circumstances exist in this case.

Petitioner argues that the due process rights of the Class were
violated because the Notice did not quantify the recovery that

Class members would receive from the aggregate settlement and
because the Notice somehow misled class members that they
would receive a “substantial” percentage of their market losses.
These issues are based on an inaccurate view of the record, and
in any event, do not provide a basis for granting certiorari. There
is no conflict among the Circuits and the petition does not raise
a novel question of law.

A. The Court Of Appeals’ Decision Is Not In Conflict With
Any Decision Of This Court Or Of Any Other Court
Of Appeals

In Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950), this Court held that the requirements of due
process were satisfied if the notice in a class action was
“reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections.” See also Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 174 (1974).

Consistent with this decision, the Ninth Circuit, citing its prior
opinion in Marshall v. Holiday Magic, Inc., 550 F.2d 1173 (9th
Cir. 1977), held that the Notice in this case satisfied all due pro-
cess requirements in that it fully described the terms of the set-
tlement, permitted Class nembers an opportunity to be heard,
permitted class members an opportunity to opt out of the Class,
specifically stated that the aggregate amount of the settlement
was $30 million, and fully described that each Class member’s
recovery from the aggregate settlement would be proportional
based upon a formula for calculating settlement distributions.
The fact that each Class member was not given an estimate of
what their recovery would be simply does not raise due process
concerns.

The other courts that have considered this issue are in accord.
See, e.g., Weinberger v. Kendrick, 698 F.2d 61, 69-71 and n.11
(2nd Cir. 1982), cert. denied, 464 U.S. 818 (1983) (Judge Friendly
rejected numerous challenges to a securities settlement notice
that was substantially similar in scope to the one here, including
a challenge that the notice was defective “because it

dic not state what proportion of the class’s total loss the settle-
ment fund represented.”); In re Corrugated Container Antitrust
Litigation, 643 F.2d 195 (5th Cir.), cert. denied, 456 U.S. 998
(1981) (notice of settlement was satisfactory even though it failed
to provide an estimated range of recovery per unit); Grunin v.
International House of Pancakes, 513 F.2d 114, 122-23 (8th Cir.),
cert. denied, 423 U.S. 864 (1975); In re Equity Funding Corp.
of American Securities Litigation, 603 F.2d 1353, 1361-62 (9th
Cir. 1979) (notice does not have to disclose range of potential
offsets applied against any recovery since it was obvious that
the value of this offset would fall with a range of between zero
and full value); Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
637 (N.D. Cal. 1978), affd, 645 F.2d 699 (9th Cir.), cert. denied,
454 U.S. 1126 (1981), Cannon v. Texas Gulf Sulfur Co., 55 F.R.D.
308, 313 n.2 (S.D.N-Y. 1972); Bennett v. Behring Corp., 96 F.R.D.
343 (S.D. Fla. 1982) (notice only required to advise Class
members of general parameters of settlement, not the details).

Accordingly, there is no conflict among the Courts on what
constitutes adequate notice in the context of a class action and
the Notice at issue here complied with all of the requirements
of due process. A class settlement notice may “consist of a very
general description of the proposed settlement.” Grunin, 513 F.2d
at 122; accord, Weinberger, 698 F.2d at 70. “Class members are
not expected to rely on the notices as a complete source of set-
tlement information.” Grunin, 513 F.2d at 122.

Moreover, the premise of petitioners’ argument — that the
recovery each Class member will get from the settlement fund
is ascertainable at the time the notice is sent — is in error. The
fact is the amount of each Class member’s recovery need not
(and indeed cannot) be set forth in the notice because the
amount of each individual’s recovery from the settlement is
dependent upon the number of valid claims filed, the “recog-
nized losses” realized by the Class members who filed valid
claims and the number of Class members who choose to opt
out of the Class. See Weinberger, 698 F.2d at 70 and n.ll. The
formula for determining proportional recovery of each Class
member was set forth in full in the Notice at issue in this case.

10

As indicated above, the courts are uniform in holding that no
more is required.

Moreover, it would be seriously misleading to compare the
settlement to some estimate of “market losses” for the Class in
the notice because doing so would misinform Class members
about the strength and size of their claims. Under the anti-fraud
provisions of the federal securities laws, an investor may recover
as damages only that portion of his stock market loss that is
caused by the alleged misrepresentation or nondisclosure. Price
declines due to market forces or factors other than those
misrepresented or concealed may not be recovered, unless
rescissory damages are warranted. See, e.g., Affiliated Ute
Citizens of Utah v. United States, 406 U.S. 128, 155-56 (1972),
(holding that damages for violations of Section 10(b) were deter-
mined by the “out of pocket measure of damages” which is based
upon the difference between the “fair value” of the stock ab-
sent any violations of Section 10(b) and the consideration paid).
See also Blackie v. Barrack, 524 F.2d 891, 919 n.25 (9th Cir.
1975), cert. denied, 429 U.S. 816 (1976); Green v. Occidental
Petroleum Corp., 541 F.2d 1335 (9th Cir. 1976); Rolf v. Blyth,
Eastman Dillon & Co., Inc., 637 F.2d 77 (2d Cir. 1980) and Rolf
v. Blyth Eastman Dillon & Co., Inc., 570 F.2d 38, 49 and n.22
(2nd Cir. 1978) (describing certain offsets applied to reduce
market losses in computing damages). Since damages and market
losses cannot be equated, it would be highly misleading to sug-
gest otherwise. A class notice should not include misleading in-
formation about potential recoveries. See Oswald v. McGarr,
620 F.2d 1190, 1198-99 (7th Cir. 1980).

In sum, the Ninth Circuit held that the Notice in this case
satisfied all relevant due process requirements. Other federal
courts that have considered this and similar issues are in accord.
Petitioner has not identified any contrary authorities. Under
these circumstances, there is no basis for granting the petition
for certiorari since there is no conflict with decisions of this Court
or other circuits and petitioner has presented no novel question
of law. See Braxton v. United States, 500 U.S. 344, (1991) (“A
principal purpose for which we use our certiorari jurisdiction
. . . is to resolve conflicts among the Circuit Courts of Appeal

ll

and state courts concerning the meaning of provisions of federal
law.”); Rice v. Sioux City Memorial Park Cemetery, Inc., 349
U.S. 70 (1955).

B. The Notice Properly Informed Class Members About The
Settlement And This Case Does Not Present Special Or
\ Important Reasons For Granting Certiorari

As noted above, the Court of Appeals held that the Notice
in this action fully and properly described the terms of the set-
tlement and the rights of Class members thereunder. Petitioner
mistakenly argues that she and other Class members were prom-
ised that they would recover a substantial amount of their losses
if they approved the settlement. Very simply, no such represen-
tation was made.

As noted above (p. 5), the Notice simply stated that “Counsel
for class plaintiffs believe that the settlement of the class ac-
tions described in this Notice confers substantial benefits to the
settlement class and each of its members. . ..”* By any objective
standard, $30 million is a substantial benefit, particularly here
in light of the Company’s financial difficulties. However, it takes
a great leap of faith to turn this statement into a promise that
Class members would recover a substantial portion of their
market losses from the settlement. The petitioner’s argument
is based on tortured reasoning and unreasonable inferences. The
Notice clearly did not promise class members that they would
recover a substantial portion of their market losses. Petitioner's
contrary erroneous argument does not present specia! or impor-
tant reasons for granting certiorari.

The question of what the Notice said or did not say and the
inferences to be drawn therefrom presents a factual dispute, at
best, and such a dispute does not provide a basis for granting
certiorari. It is well settled that “[a]n issue of fact is not ‘impor-
tant’ for purposes of Rule 10. Normally the Court will not grant

* Petitioner repeatedly misquotes the notice by italicizing, bolding and underlin-
ing the language of the Notice without acknowledging to the Court that the

emphasis is supplied by petitioner.

12

certiorari to review a decision that turns solely upon an analysis
of facts, or to determine whether the evidence supports a judg-
ment of a District Court . . . as to such issues, the Courts of
Appeals are generally the courts of last resort.” 13 J. Moore, H.
Bendix, B. Ringle and K. Shirey, Moore’s Federal Practice, § 10.41
at S.C. 10-47 (2d. Ed. 1993) (citing National Labor Relations
Board wv. Pittsburgh Steamship Co., 340 U.S. 498, 503 (1951)).

Lastly, the adequacy of the Notice at issue in this petition is
demonstrated by Class members’ responses in this case. The ob-
jections of petitioner and other Class members were considered
fully by the District Court. Class members were fully informed
about their rights under the settlement — their right to exclude
themselves from the Class or object to the terms of the settle-
ment. Indeed, if petitioner truly wanted to bring TEP’s officers
and directors to “public scrutiny” and to seek “some funds from
the actual pockets of the individual officers and directors,” she
had every right to do so on her own. In fact, the Court of Ap-
peals recognized that the circumstances at hand suggest that
petitioner is merely a “spoiler” whose concerns could have been
addressed in an individual lawsuit had she elected to opt out
of the settlement. Torrisi, 8 F.3d at 1378. The thousands of Class
members who support this settlement should not suffer on ac-
count of petitioner’s misunderstanding of the notice and her
unrealistic, personal gripes.

Eee
©, el i

13

CONCLUSION

Petitioner has used the petition as a stage from which to broad-
cast her perceived grievances with this settlement and with class
actions generally. Petitioner’s personal views, however, do not
give rise to circumstances warranting granting certiorari. Given
that there is no conflict in the lower courts on any legal issues
raised by petitioner and given that petitioner merely challenges
the Ninth Circuit’s decision to uphold the District Court's find-
ings that this settlement is fair, reasonable and adequate and
that the Notice was proper, this case is clearly not worthy of
this Court’s attention.

For the foregoing reasons, the Court should not grant the peti-
tion for a writ of certiorari.

Dated: New York, New York
May 26, 1994

Respectfully submitted,

ARTHUR N. ABBEY
Counsel of Record

ABBEY & ELLIS

212 East 39th Street

New York, New York 10016
(212) 889-3700

MeEtvyn I. Welss

MILBERG WEISS BERSHAD
HYNES & LERACH

One Pennsylvania Plaza

New York, New York 10119

(212) 594-5300

STANLEY R. WoLFE

BERGER & MONTAGUE, P.C.
1622 Locust Street

Philadelphia, Pennsylvania 19103
(215) 875-3000

Counsel for Respondents
John V. Torrisi, et al.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1553%3A2. Public record. Not legal advice.