Opposition Brief — Jones v. National Football League

HLBEB

NAY 2.2 4995

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IN THE ——

Supreme Court of the United States

OCTOBER TERM, 1994

SEAN JONES, ET AL..,

Petitioners,

V.

REGGIE WHITE, E17 AL. AND

NATIONAL FOOTBALL LEAGUE, ET AL.,

Respondents.

MARK DUSBABEK, ET AL.,

Petitioners,

Vv

REGGIE WHITE, ET AL. AND

NATIONAL FOOTBALL LEAGUE, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF IN OPPOSITION TO PETITIONS

FOR A WRIT OF CERTIORARI

HERBERT DYM FRANK ROTHMAN*

GREGG H. LEvy SHEPARD GOLDFEIN

COVINGTON & BURLING WILLIAM L. DALY

1201 Pennsylvania Avenue, N.W. SKADDEN, ARPS, SLATE,

P.O. Box 7566 MEAGHER & FLOM

Washington, D.C. 20044-7566 300 South Grand Avenue

(202) 662-6000 Los Angeles, CA 90071

(213) 687-5000

Attorneys for Respondents National Football League, et al.

*Counsel of Record

on %; sun ie AS hg Ee a a ck ie i oe

COUNTERSTATEMENT OF QUESTIONS PRESENTED

i. Whether this Court should exercise its certiorari jJurisdic-

tion to review questions that the court below expressly declined to

consider or decide.

2. Whether, in a class action properly certified under Federal

Rule of Civil Procedure 23(b)(1) and involving claims predomi-

nantly for injunctive relief, class members who are subject to the

class action court’s personal jurisdiction have an absolute right to

opt out of the class.

for injunctive relief, the presence of claims for monetary damages

precludes class certification under Federal Rules of Civil Proce-

| 3. Whether, in a class action involving claims predominantly

dure 23(b)(1) and/or (b)(2).

|

=

:

PARTIES TO THE PROCEEDING

The National Football League (the "NFL" or the "League")

and 28 of its member clubs are Respondents in this proceeding (the

"NFL Respondents").* The NFL Respondents were the defen-

dants in the proceedings before the United States District Court for

the District of Minnesota and were appellees before the United

States Court of Appeals for the Eighth Circuit.

NFL players Reggie White, Michael Buck, Hardy Nickerson,

Vann McElroy, and Dave Duerson, on behalf of the White class,

are Respondents in this proceeding (the "Player Respondents").

The Player Respondents were the plaintiffs and the class represen-

tatives in the proceedings before the United States District Court

for the District of Minnesota and were appellees before the United

States Court of Appeals for the Eighth Circuit.

NFL players Sean Jones, Leslie O’Neal, Eric Allen, Cris

Dishman, William Mathews, and Van Waiters are Petitioners in

this proceeding (the “Jones Petiticners"). The Jones Petitioners

were class members/objectors/plaintiffs-in-intervention in the

proceedings before the United States District Court for the District

of Minnesota and were appellants before the United States Court

of Appeals for the Eighth Circuit.

* The member clubs of the NFL who are Respondents in this

proceeding are: The Five Smiths, Inc.; Buffalo Bills, Inc.;

Chicago Bears Football Club, Inc.; Cincinnati Bengals, Inc.;

Cleveland Browns, Inc.; The Dallas Cowboys Football Club, Ltd.;

PDB Sports, Ltd.; The Detroit Lions, Inc.; The Green Bay

Packers, Inc.; Houston Oilers, Inc.; Indianapolis Colts, Inc.;

Kansas City Chiefs Football Club, Inc.; The Los Angeles Raiders,

Ltd.; The Los Angeles Rams Football Company, Inc.; Miami Dol-

phins, Ltd.; Minnesota Vikings Football Club, Inc.; KMS Patriots,

L.P.; The New Orleans Saints Limited Partnership; The New

York Football Giants, Inc.; New York Jets Football Club, Inc.;

The Philadelphia Eagles Football Club, Inc.; B&B Holdings, Inc.;

Pittsburgh Steelers Sports, Inc.; Chargers Football Co.; Seattle

Seahawks, Inc.; Tampa Bay Area NFL Football Club, Inc.; and

Pro-Football, Inc.

NFL players Mark Dusbabek, Carl Lee, Audray McMillian,

Felix Wright, Cody Risien, Mark Harper, Sammy Martin, Don

Beebe, Gregory Scales, Maurice Hurst, John Fourcade, and Byron

Evans are Petitioners in this proceeding (the "Dusbabek Petition-

ers"). The Dusbabek Petitioners were class mem-

bers/objectors/plaintiffs-in-intervention in the proceedings before

the United States District Court for the District of Minnesota and

were appellants before the United States Court of Appeals for the

Eighth Circuit.

ill

TABLE OF CONTENTS

PAGE

COUNTERSTATEMENT OF

QUESTIONS PRESENTED .. 0.1... ccc eee e eee i

PARTIES TO THE PROCEEDING ............... il

py es ee eee eee Tee eee iv

TABLE OF AUTHORITIES ................... vi

a ak a Shi. Weak he ee ee l

COUNTERSTATEMENT OF THE CASE ........... 2

REASONS FOR DENYING THE WRIT ............ 8

I. THE EIGHTH CIRCUIT EXPRESSLY DECLINED

TO REACH THE PRIMARY QUESTIONS

RADISH? DY PITICMINRS 5 wc ct 8

II. THE RESULT REACHED BY THE EIGHTH

CIRCUIT IS FULLY CONSISTENT WITH THIS

COURT’S PRECEDENT AND WOULD NOT

HAVE BEEN DIFFERENT IN OTHER CIR-

Cee 60 rae Ree eee ee eer Sew hw a3 9

A. There Is No Conflict with this Court’s

Decision in Phillips Petroteum Co. v.

Is ics ca aay ir re en Oe a ee eo le 10

l. No Shutts Issue Is Presented

Because the Objectors Con-

sented to the District

og ee 10

iV

PAGE

‘- In Any Event, Shutts Would

Not Require an Opt-Out

Right in this Case Because it

Involves Claims Predomi-

nantly for Injunctive Relief ......... 15

B. For the Same Reasons that No Shutts

Issue Is Presented, the Eighth Circuit's

Decision Does Not Conflict with Ninth

ee I Gon 8 ee Ok ee Ok de ke 16

Ill. RULES 23(b)(1) AND 23(b)(2) WERE NOT IN-

TENDED, AND HAVE NEVER BEEN CON -

STRUED, TO PRECLUDE CERTIFICATION OF

MANDATORY CLASSES V *!ERE CLAIMS FOR

MONETARY RELIEF AREINVOLVED ....... 19

co a en rere revi oe eA e ree tre 23

TABLE OF AUTHORITIES

CASES PAGE(S)

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .... 20

Arata v. Nu Skin International, Inc., No. 92-15380, 1993

U.S. App. LEXIS 21747 (9th Cir.

ee ee E's 3k 6 elk woe 0 alae eo OKS 18, 20n

Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D.

ST Ie ec ig aw 18

Battle v. Liberty National Life Insurance Co., 770 F. Supp.

1499 (N.D. Ala. 1991), aff'd, 974 F.2d 1279 (11th

Cir. 1992), cert. denied, 113 S. Ct. 2999 (1993) .. 13n

Besinga v. United States, 923 F.2d 133 (9th Cir. 1991) ... 12

Brown v. Ticor Title Insurance Co., 982 F.2d 386 (9th Cir.

1992), cert. dismissed, 114 S. Ct. 1359 (1994) . passim

Burnham v. Superior Court, 495 U.S. 604 (1990) ....... 22

Califano v. Yamasaki, 442 U.S. 682 (1979)... 2.000... 20

California v. Taylor, 353 U.S. 553 (1957) ............ 9

Dosier v. Miami Valley Broadcasting Corp.. 656 F.2d 1295

ee a oe ee er 20n

In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285

(2d Cir. 1992), cert. dismissed, 113 S. Ct. 1070

ae ge i er Eo ee os eo ane 12

Duignan v. United States, 274 U.S. 195 (1927) ......... 9

EEOC v. General Telephone Co., 599 F.2d 322 (9th Cir.),

aff'd on other grounds, 446 U.S. 318 (1980)... .. 21n

Edgerton v. Armour & Co., 94 F. Supp. 549 (S.D. Cal.

RST RE ie ee age gan dh Cee ake ee ed 2In

vi

CASES PAGE(S)

Elliott v. Weinberger, 564 F.2d 1219 (9th Cir. 1977), aff'd

sub nom. Califano v. Yamasaki, 442 U.S. 682

EE Sos ae Aa ees Wi ee Oe wars Re 21n

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ..... 14

Grimes v. Vitalink Communications Corp., 17 F.3d 1553

(3d Cir.), cert. denied, 115 S. Ct. 480 (1994) ..... 12

Howard v. McLucas, 782 F.2d 956 (11th Cir. 1986) .... 20n

In re Jackson Lockdown/MCO Cases, 107 F.R.D. 703

ee a eee hd Sale tbe ~ 13n

King v. South Central Bell Telephone & Telegraph Co..,

790 F.2G Sas GO Cir. T9GB) 2 wc eee 20n

Larionoff v. United States, 533 F.2d 1167 (D.C. Cir.

1976), aff'd, 431 U.S. 864 (1977) ........... 20n

McNeil v. NFL, 1992-2 Trade Cas. (CCH) 4 69,982 (D.

a EE oo, kane Se a a Se ee eee ek es 3

Mitchell v. Los Angeles Unified School District, 963 F.2d

258 (9th Cir.), cert. denied, 113 S. Ct. 375 (1992) .. 12

NCAA v. Board of Regents, 468 U.S. 85 (1984) ........ 14

Nottingham Partners v. Trans-Lux Corp., 925 F.2d 29 (ist

SR Sa ee ee RE AROS 20n

Patrich v. Burge, 406 U.S. $2 (1966) . 2... we eee 9

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) . passim

Powell v. NFL, 930 F.2d 1293 (8th Cir. 1989), cert.

denied, 498 U.S. 1040 (1991) ............... 2

Powell v. NFL, 711 F. Supp. 959 (D. Minn. 1989) ...... 2

Vil

CASES PAGE(S)

Probe v. State Teachers’ Retirement System, 780 F.2d 776

(9th Cir.), cert. denied, 476 U.S. 1170 (1986) ... 20nn

Ramsey v. United Mine Workers, 401 U.S. 302 (1971) ..... 9

In re Real Estate Title & Settlement Services Antitrust

Litigation, 869 F.2d 760 (3d Cir.), cert. denied, 493

Rs Se EE. 2G vs Go a ee de ek ee ee eae 14

Reynolds v. NFL, 584 F.2d 280 (8th Cir. 1978) ....... 20n

Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir.

Pe Ss et EES CASS Oe eases 20n

Robertson v. NBA, 556 F.Zd 682 (2d Cir. 1977) ....... 20n

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert.

dismissed, 404 U.S. 1006 (1971) ............ 20n

Rodgers v. Lodge, 458 U.S. 613 (1982) ............. 14

Saunders v. Naval Air Rework Facility, 608 F.2d 1308 (9th

| Se ae ee ure re Sree 20-21n

Silber v. Mabon, 18 F.3d 1449 (9th Cir. 1994) ........ 12

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) ....... 9

Ticor Title Insurance Co. v. Brown, 114 S. Ct. 1359

SOU ik eo ia hs ec ee ee ee ee 15n, 17n, 19n

Ticor Title Insurance Co. v. Brown, 114 §. Ct. 56 (1993) . 17n

Waldron v. Raymark Industries, Inc., 124 F.R.D. 235

na Se SE 4s oh Pe ee ee ee ee 13n

Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956

fo | ee rae rarer 20n

White v. NFL, 41 F.3d 402 (8th Cir. 1994) ........ passim

Vili

CASES PAGE(S)

White v. NFL, 836 F. Supp. 1458 (D. Minn. 1993) ... passim

White v. NFL, 822 F. Supp. 1389 (D. Minn. 1993) ... passim

Whitson v. Heilig-Meyers Furniture, Inc., No. 94-PT-0309-

E, 1995 U.S. Dist. LEXIS 4312 (N.D. Ala. Feb. 9,

SE eRe ee CEG eh ee bees 13n

Williams v. Burlington Northern, Inc., 832 F.2d 100 (7th

Cir. 1987), cert. denied, 485 U.S. 991 (1988)... .. 20n

York v. Guaranty Trust Co., 143 F.2d 503 (2d Cir. 1944),

rev'd on other grounds, 326 U.S. 99 (1945) ...... 21n

Youakim v. Miller, 425 U.S. 231 (1976) .............. 9

Zahn v. Transamerica Corp., 162 F.2d 36 (3d Cir. 1947) .. 211

OTHER AUTHORITIES PAGE(S)

Amendments to Rules of Civil Procedure, Advisory Com-

mittee’s Notes to Rule 23, 39 F.R.D. 69 (1966) . 21, 22

Pe ae ee oe ees passim

ix

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

SEAN JONES. et al.,

Petitioners,

V.

REGGIE WHITE, et al. and

NATIONAL FOOTBALL LEAGUE, et al.,

Respondents.

MARK DUSBABEK, et al.,

Petitioners,

Vv.

REGGIE WHITE, et al. and

NATIONAL FOOTBALL LEAGUE, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION TO PETITIONS

FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 41 F.3d 402

(8th Cir. 1994) ("White III") and is reprinted in Petitioners’ Appen-

dix at 2-17. The decision of the District Court granting final

approval to the settlement agreement, as amended, and the Final

Consent Judgment entered in accordance therewith are reported at

836 F. Supp. 1458 (D. Minn. 1993) ("White II") and at 836 F.

Supp. 1508 (D. Minn. 1993), respectively, and are reprinted in

Petitioners’ Appendix at 34-169 and 26-33, respectively. The

decision of the District Court granting final approval to the original

settlement agreement and enjoining the lawsuits of individual class

members is reported at 822 F. Supp. 1389 (D. Minn. 1993) (" White

I") and is reprinted in Petitioners’ Appendix at 170-300.

COUNTERSTATEMENT OF THE CASE

This labor dispute between NFL clubs and NFL players

involved a broad challenge to the nature and structure of various

player employment practices in the NFL, including the League’s

Plan B veteran player employment rules, the College Draft, the

NFL Player Contract, and the League’s preseason pay rules. At the

heart of the dispute were the parties’ conflicting views with regard

to free agency. The players contended that they were entitled to

complete free agency, under which each NFL player would be free,

without restriction, to offer his services to every NFL team upon

expiration of his contract. The League, on the other hand,

maintained that there must be some restrictions on a veteran

player’s mobility so that the best NFL players would not flock to

the more attractive markets or to the better quality teams, thereby

disrupting competitive balance in the League and making the NFL’s

entertainment product less attractive to consumers.

In October 1987, several NFL players filed Powell v. NFL,

Civ. No. 4-87-917 (D. Minn.), a mandatory class action alleging

that the League’s collectively bargained free agency system and

various other employment practices violated the antitrust laws. The

District Court in Powell certified a mandatory non-opt-out class

action for injunctive relief and damages. See Powell v. NFL, 711

F. Supp. 959, 966-69 (D. Minn. 1989). In November 1989, the

Eighth Circuit Court of Appeals held that the players’ claim was

barred by the nonstatutory labor exemption to the antitrust laws.

Powell v. NFL, 930 F.2d 1293, 1303 (8th Cir. 1989), cert. denied,

498 U.S. 1040 (1991).

Immediately following the Eighth Circuit’s decision in Powell,

the National Football League Players Association (the "NFLPA")

purported to disclaim its status as the exclusive collective bargaining

representative of NFL players. This step was intended to terminate

the labor exemption, to put an end to collective bargaining, and to

shift the labor dispute to the antitrust courts. Specifically, the

NFLPA began funding and otherwise directing the filing of multiple

antitrust actions against the NFL and its member clubs. Over the

next three years, that campaign resulted in the filing of approxi-

mately 24 separate lawsuits, many of which were funded by the

NFLPA, in fifteen federal and state courts across the country.

Among these cases was McNeil v. NFL, Civ. No. 4-90-476 (D.

Minn.). McNeil, ostensibly brought by eight individual plaintiffs,

challenged the legality of the League’s Plan B free agency system.

McNeil was tried to verdict in a ten-week trial. The jury found that

Plan B: (1) "[had] a substantially harmful effect on competition in

the relevant market for the services of professional football

players"; (2) "significantly contribute[d] to competitive balance in

the NFL"; and (3) was "more restrictive than reasonably necessary

to achieve . . . competitive balance." See McNeil v. NFL, 1992-2

Trade Cas. (CCH) 4 69,982, at 68,769 (D. Minn. 1992) (Special

Verdict Form). The jury awarded damages only to four of the

eight plaintiffs in amounts significantly less than those four players

had sought. See id.

Less than two weeks after the McNeil verdict, the Player

Respondents filed this class action. The complaint originally sought

only injunctive relief but was later amended to include a claim for

antitrust damages. In October 1992, plaintiffs in White, as well as

the plaintiffs in McNeil, moved for an injunction seeking to bar

defendants from enforcing Plan B or imposing any other system

limiting the market opportunities available to veteran NFL players

whose contracts were to expire on February 1, 1993.

Against this backdrop of numerous and varied litigations,

pending post-trial motions in McNeil, injunction motions in McNeil

and in White, and the certainty of an appeal involving “complex and

difficult" and "significant issues for appellate review,"' on January

' In later approving the terms of the White class settlement, the

pp g

District Court specifically identified several “significant issues for

appellate review" that would have been raised in any appeal of the

McNeil verdict, including: (1) the scope of the nonstatutory labor

exemption; (2) the application of the rule of reason under Section

1 of the Sherman Act and, specifically, burden of proof issues

related thereto; (3) the court’s jury instructions regarding antitrust

injury; and (4) its determination with regard to the League’s "single

enterprise” defense. See White I], 836 F. Supp. at 1467 n.25 (Pet.

(continued...)

6, 1993, the parties reached an agreement in principle to settle the

White case and a wide range of related litigation. The settlement

was the result of extensive arm’s-length negotiations between class

counsel and the League. Pursuant to Rule 23(b)(1), the District

Court conditionally certified a mandatory settlement class consisting

of:

(i) all players who have been, are now, or will be under

contract to play professional football for an NFL club at

any time from August 31, 1987 to the date of final

approval of the settlement of this action and the determi-

nation of any appeal therefrom, and (ii) all college and

other football players who, as of August 31, 1987,

through the date of final approval of the settlement of this

action and the determination of any appeals therefrom,

have been, are now, or will be eligible to play football as

a rookie for an NFL team.

See Order, White v. NFL, Civ. No. 4-92-906 (D. Minn. Jan. 6,

1993): Order, White v. NFL, Civ. No. 4-92-906 (D. Minn. Feb.

17, 1993). In the words of the District Court:

Those mandatory class certification orders have provided

a vehicle for the settlement of, among other things, all

player challenges to the Plan B veteran player reservation

rules, the college draft and the preseason pay rules. The

settlement is the critical step toward the final resolution of

the longstanding dispute between the NFL clubs and their

player-employees.

822 F. Supp. at 1395 (Pet. App. at 175).

In February 1993, the parties in White executed a formal

Stipulation and Settlement Agreement that was designed to bring an

'(...continued)

App. at 56-58 n.25); see also White J, 822 F. Supp. at 1418 (Pet.

App. at 184-85).

end to this litigation and to a wide range of related cases.?> The

settlement represented a compromise on a wide array of structural

issues. For the players, the settlement provided, among other

things, a system of unrestricted free agency for those with at least

four years of accrued service in the League. Thus, the players

were able to achieve their principal and overriding objective in

bringing this litigation.

At the same time, the League was able to protect to some

extent its interest in competitive balance by preserving the College

Draft, limiting the number of players that could become free agents

in any one year, providing a League-wide cap on salaries and the

amount of money to be paid to untested rookies, and limiting the

number of veteran free agents that the League’s "better" teams

could sign.

In addition to providing prospectively for a guaranteed share

of League-wide revenues to be paid to all players (which will

provide players with billions of dollars), the settlement called for a

$115 million payment to be distributed to class members through a

settlement distribution formula approved by the District Court. 822

F. Supp. at 1421-24 (Pet. App. at 253-62).

After notice was provided to class members, 73 NFL players

(out of an identifiable class of approximately 5,000) filed objections

to the proposed settlement. All objectors were given a full and fair

opportunity to voice their objections, including the opportunity to

produce witnesses, to cross-examine witnesses offered by others,

and to offer exhibits, at a formal court hearing on the fairness,

reasonableness, and adequacy of the proposed settlement. Many

did so. That hearing also addressed defendants’ request for an

? See Stipulation and Settlement Agreement, White v. NFL, No. 4-

92-906 (D. Minn. Feb. 26, 1993). As part of the global settlement,

the parties also settled eleven other pending federal and state court

player lawsuits, all funded by the NFLPA, challenging the League’s

player employment rules. See White J, 822 F. Supp. at 1416 n.36

(Pet. App. at 237 n.36).

order enjoining all pending and future cases brought by individual

class members involving the employment practices at issue in

White.

Several weeks after the fairness hearing, the District Court

issued a 115-page order overruling all objections to the proposed

settlement and enjoining individual lawsuits involving similar claims

by class members. See 822 F. Supp. at 1426, 1433-35 (Pet. App.

at 260, 288-94).

In May 1993, one week after the District Court’s approval of

the original Stipulation and Settlement Agreement but before the

court had entered a final judgment, the NFL clubs and the NFLPA

entered into a new Collective Bargaining Agreement that incorpo-

rated the material terms of the settlement agreement as well as other

terms and conditions of player employment. See 822 F. Supp. at

1435-36 (Pet. App. at 295-397). The new Collective Bargaining

Agreement was ratified by approximately 96 percent of all NFL

players voting. See 836 F. Supp. at 1467, 1483 (Pet. App. at 54,

102-03). The parties then moved to amend the Stipulation and

Settlement Agreement to conform its terms to those of the Collec-

tive Bargaining Agreement.’

The District Court proceeded again with a formal settlement

approval process. After preliminary approval and notice to all

affected class members (see Order, White v. NFL, No. 4-92-906

(D. Minn. June 2, 1993)), formal objections to the amended settle-

ment agreement were filed on behalf of 28 NFL players. This

group of player-objectors was a subset of the group that had

objected to the original Stipulation and Settlement Agreement.

> The viability of the Collective Bargaining Agreement between the

NFL clubs and players may depend on the continuing existence of

the White settlement. If the mandatory class in White is not upheld

on appeal and the NFL exercises its option to terminate the

settlement agreement, the viability of the Collective Bargaining

Agreement will be in question.

erasers

In early July 1993, the District Court held a final approval

hearing to consider the amended settlement agreement. All class

members and other interested parties were again afforded the

opportunity to object to or otherwise express their views on the

fairness, reasonableness, and adequacy of the settlement agreement,

as amended.

On August 20, 1993, the District Court entered an order

incorporating all of the findings set forth in its earlier settlement

approval order, making certain additional findings, overruling all

of the objections to the amended Stipulation and Settlement Agree-

ment, and granting final approval thereto. See 836 F. Supp. at

1468, 1504 (Pet. App. at 58-59, 168-69). The court also entered

a Final Consent Judgment. See Final Consent Judgment, White v.

NFL, 836 F. Supp. 1508 (D. Minn. 1993) (Pet. App. at 26-33).

In the following weeks, a total of seven appeals from the Final

Consent Judgment were noticed, two of which were subsequently

withdrawn. The Jones Petitioners and the Dusbabek Petitioners

together comprise four of the five groups of appellants below. The

appellants sought reversal of the District Court’s judgment on

essentially the same grounds upon which they seek this Court’s

grant of certiorari but, as further explained below, the Court of

Appeals did not reach many of those grounds in resolving the

appeals.

On December 6, 1994, the Eighth Circuit unanimously

affirmed the District Court’s judgment. Specifically, the Court of

Appeals held that: (1) the District Court’s class certification under

Rule 23(b)(1) and its inclusion of these objectors in the mandatory

class constituted a proper exercise of the District Court’s discretion,

41 F.3d at 407-08 (Pet. App. at 12-14); (2) the interests of the

plaintiff class were adequately represented by the named plaintiffs

and their counsel and were adequately protected by the settlement

agreement, 41 F.3d at 408 (Pet. App. at 14-15); (3) the class

members were given adequate notice of the proposed settlement and

were given multiple opportunities to challenge their inclusion in the

plaintiff class, 41 F.3d at 408-09 (Pet. App. at 15-16); and (4) the

District Court’s injunction of related actions by individual class

7

members was a proper exercise of its jurisdiction over the mandato-

ry class action, 41 F.3d at 409 (Pet. App. at 16-17).

Because the only remaining objectors to the settlement were all

properly subject to the District Court’s personal jurisdiction, the

Eighth Circuit specifically declined to reach the primary issue

presented here by the objectors and left undecided by this Court’s

decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) -

- "whether a trial court may certify a nun-opt-out plaintiff class in

an action brought primarily for injunctive relief under Fed. R. Civ.

P. 23(b)(1).". 41 F.3d at 408 (Pet. App. at 14).

On January 20, 1995, the Eighth Circuit denied the objectors’

petitions for rehearing and their suggestions for rehearing en banc.

See Order, Evans v. NFL, Nos. 93-3375, et al. (8th Cir. Jan. 20,

1995) (Pet. App. at 1).

REASONS FOR DENYING THE WRIT

I. THE EIGHTH CIRCUIT EXPRESSLY DECLINED TO

REACH THE PRIMARY QUESTIONS RAISED BY PETI-

TIONERS

Because of our view of the jurisdictional issue, we do not

reach the issue raised by the objectors and left undecided

by Shutts, namely whether a trial court may certify a non-

opt-out plaintiff class in an action brought primarily for

injunctive relief under Fed.R.Civ.P. 23(b)(1).

White Ill, 41 F.3d at 408 (Pet. App. at 14).

The Petitioners raise as their primary questions presented in

this Court whether, in light of the presence of claims for monetary

damages, the District Court properly certified, and maintained over

Petitioners’ objection, a mandatory, non-opt-out class. Because

neither of these issues was decided by the Eighth Circuit, however,

this Court should adhere to its usual practice and decline to consider

these questions.

The Eighth Circuit’s decision in this case was extremely

narrow. The court held only that, in this case, a class action that

sought predominantly injunctive relief, the District Court’s inclusion

of the objectors and refusal to grant them opt-out rights was a

proper exercise of the District Court’s discretion because all of the

objectors were subject to the District Court’s personal jurisdiction.

White Ill, 41 F.3d at 407-08 (Pet. App. at 12-14). The Court

expressly declined to decide whether, in other circumstances, a trial

court may certify a non-opt-out plaintiff class in an action involving

claims for money damages but brought primarily for injunctive

relief.

This Court has consistently refused to review questions not

considered or decided by the lower court. See, ¢.g., Taylor v.

Freeland & Kronz, 503 U.S. 638, 645-46 (1992); Patrick v. Burget,

486 U.S. 92, 99 n.5 (1988); Youakim v. Miller, 425 U.S. 231, 234

(1976); Ramsey v. United Mine Workers, 401 U.S. 302, 312

(1971); California v. Taylor, 353 U.S. 553, 556-57 n.2 (1957);

Duignan v. United States, 274 U.S. 195, 200 (1927). There is no

reason for the Court to depart from its usual practice here. For that

reason alone, the petitions should be denied.

Il. THE RESULT REACHED BY THE EIGHTH CIRCUIT IS

FULLY CONSISTENT WITH THIS COURT’S PRECE-

DENT AND WOULD NOT HAVE BEEN DIFFERENT IN

OTHER CIRCUITS

Notwithstanding the Court of Appeals’ jurisdictional finding

and its express refusal to reach the primary issues presented in the

instant petitions, Petitioners claim that the result below warrants

review because it conflicts with this Court’s decision in Phillips

Petroleum Co. v. Shutts, 472 U.S 797 (1985), and the Ninth

Circuit’s decision in Brown v. Ticor Title Ins. Co., 982 F.2d 386

(9th Cir. 1992), cert. dismissed, 114 S. Ct. 1359 (1994). Petition-

ers assert that these decisions stand for the proposition that, in a

class action properly certified under Rule 23, all class members

have an absolute right to opt out of all class actions involving

claims for money damages.

Contrary to Petitioners’ contentions, however, the result below

is not in conflict with this Court’s decision in Shutts or with the

Ninth Circuit’s decision in Brown. Accordingly, exercise of this

Court’s certiorari jurisdiction cannot be justified on that basis.

A. There Is No Conflict with this Court’s Decision in Phillips

Petroleum Co. v. Shutts

There is no conflict with this Court’s decision in Shutts

because: (1) all of the Petitioners herein were subject to the class

action court’s personal jurisdiciion; and (2) the class’ claims for

injunctive relief in this case predominated over the class’ claims for

damages.

1. No Shutts Issue Is Presented Because the

Objectors Were Subject to the District

Court’s Jurisdiction

Shutts simply did not consider whether due process requires

that class members with monetary claims be given the right to opt

out of a properly certified mandatory class. The issue in Shutts was

one of personal jurisdiction -- whether a state court could acquire

jurisdiction over, and therefore bind, out-of-state class plaintiffs

who lacked "minimum contacts" with the forum. 472 U.S. at 806-

15. The Court held that Kansas’ class action rule, which afforded

notice and an opt-out right to non-resident class members, provided

a constitutionally sufficient basis upon which to adjudicate their

claims because class members who chose not to opt out had

impliedly consented to the state court’s jurisdiction.‘

4

See Shutts, 472 U.S. at 812 ("Any plaintiff may consent to

jurisdiction. The essential question then, is how stringent the

requirement for a showing of consent will be. We think that... .

the right to ‘opt out,” [along with adequate notice,] satisfies due

process.") (citations omitted); id. at 814 ("We conclude that the

Kansas court properly asserted personal jurisdiction over the absent

plaintiffs and their claims against [the defendant].").

10

—_<£_""

Shutts therefore stands for the proposition that in class actions

involving claims wholly or predominantly for money damages, an

opportunity to “opt out” is necessary to establish consent to

jurisdiction by class members over whom the court would not

otherwise have jurisdiction. The opt-out reference in Shutts has

nothing to do with, and cannot support, any unqualified due process

right of class members to opt out of a class.°

* Petitioners’ own interpretation of Shutts has shifted over time.

Some Petitioners who reside out-of-state argued below that Shutts

guaranteed them a right to opt out, not because they were “absent”

in the sense of being non-named, but because the class action court

lacked a sufficient basis to exercise personal jurisdiction over them.

See, e.g., Objector/Appellant Byron Evans’ Reply Brief (8th Cir.

filed July 14, 1994), at 7 ("Evans’ position throughout this matter

has been that the exercise of jurisdiction over him by the Minnesota

Court is inappropriate . . . . The Court cannot bind him to a settle-

ment without affording him adequate notice, the right to opt out,

and [adequate] representation within the class, unless he has

sufficient minimum contacts with Minnesota or he has consented to

jurisdiction.") (emphasis added); Reply Brief of Appellants Sean

Jones, et al. (8th Cir. filed July 14, 1994), at 1 ("under the due

process clause as elucidated in [Shutts], class certification of an

action brought to resolve substantial dainage claims belonging to

class members who are absent from the court’s jurisdiction cannot

be granted [unless an opt-out right is afforded]") (emphasis added);

id. at 12 ("Given their lack of direct contacts with the forum,

Appellants had a constitutional right to opt out . . . . ") (emphasis

added). After the courts below determined that Petitioners had

consented to the District Court’s jurisdiction, these Petitioners

reversed field, and now argue in this Court that what below had

been a "jurisdictienal due process right" is actually an "absolute due

process right.”

1]

Several courts of appeals, including the court below, have

recently confirmed that the due process protections discussed in

Shutts are unnecessary where, as in this case, the objecting class

members are subject to the class action court’s personal jurisdiction.

There is no conflict whatsoever among the circuits on this unre-

markable principle. See, e.g., Grimes v. Vitalink Communications

Corp., 17 F.3d 1553, 1560 & n.8 (3d Cir.) (notice plus an oppor-

tunity to be heard and participate in the litigation “are sufficient to

bind absent class members who had sufficient minimum contacts

with the forum") (emphasis added), cert. denied, 115 S. Ct. 480

(1994); In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285,

292 (2d Cir. 1992) ("Because there is no question that the court has

jurisdiction over appellants, Shutts is inapposite. Thus, the district

court did not abuse its discretion in denying appellants the opportu-

nity to opt out of the class.") (emphasis added) (citations omitted),

cert. dismissed, 113 S. Ct. 1070 (1993).

Even the Ninth Circuit -- the only circuit court as to which

Petitioners claim a conflict -- has consistently interpreted Shutts as

a case that defines the process necessary to bind class members who

are not otherwise subject to the class action court’s personal

jurisdiction. Most recently, in Silber v. Mabon, 18 F.3d 1449 (9th

Cir. 1994), the Ninth Circuit stated:

Shutts involved a multi-state class action brought in state

court. . . . The issue before the court was whether a state

could exercise jurisdiction over the claim of an absent,

non-resident class action plaintiff who lacked sufficient

minimum contacts with the forum to support personal

jurisdiction . . .

Id. at 1453-54 (emphasis added); see also Besinga v. United States,

923 F.2d 133, 136 n.6 (9th Cir. 1991) (describing Shutts as a case

which prescribes what process is due to bind "absent class niembers

who are citizens of other states"; further suggesting that Shutts may

be of limited application because "ii involved a state class action

rather than a class action in federal court pursuant to Rule 23”)

(emphasis added); Mitchell v. Los Angeles Unified School Dist., 963

F.2d 258, 262 (9th Cir.) ("In its most recent discussion of class

12

EE EEO

action ‘opt out’ procedures, the Supreme Court considered whether

protections beyond the opportunity to opt out were constitutionally

required to safeguard the rights of a class plaintiff who was out-of-

state") (emphasis added), cert. denied, 113 S. Ct. 375 (1992).°

In this case, each of the Petitioners was specifically found to

be within the jurisdictional reach of the District Court by reason of

his minimum contacts with the state of Minnesota and/or because

he had consented to the District Court’s jurisdiction by participating

extensively in the class action settlement proceedings. The District

Court, expressly affirmed by the Eighth Circuit, found that the out-

of-state objectors had knowingly and voluntarily submitted to the

District Court’s jurisdiction by: (1) personally appearing at court

hearings to argue in opposition to the District Court’s approval of

the settlement agreement; (2) offering live testimony and/or cross-

examining witnesses concerning the merits of the proposed

® See also Battle v. Liberty Nat’l Life Ins. Co., 770 F. Supp. 1499,

1517 n.51(N.D. Ala. 1991) (“it is reasonable to view the particular

due-process analysis in Shutts as limited to the situations of the out-

of-state class member") (emphasis added), aff'd, 974 F.2d 1279

(11th Cir. 1992), cert. denied, 113 S. Ct. 2999 (1993); Whitson v.

Heilig-Meyers Furniture, Inc., No. 94-PT-0309-E, 1995 U.S. Dist

LEXIS 4312, *48-*49 (N.D. Ala. Feb. 9, 1995) (Shutts stands for

the proposition that in class actions "where a plaintiff class seeks

primarily monetary relief, and where a proposed settlement seeks

to bind plaintiffs who are not subject to the personal jurisdiction of

the court, due process requires that class members be given an

opportunity to opt out") (emphasis added); Waldron v. Raymark

Indus., Inc., 124 F.R.D. 235, 238 (N.D. Ga. 1989) (under Shutts,

court refused to certify mandatory class where class members had

"insufficient contacts to allow the court to exercise personal

jurisdiction over them"); In re Jackson Lockdown/MCO Cases, 107

F.R.D. 703, 713-14 (E.D. Mich. 1985) ("The recent Supreme

Court ruling in [SAutts] bars a mandatory class action under state

law for most claims that are wholly or predominately for monetary

damages where most members of the class reside out of state")

(emphasis added).

13

settlement; and (3) filing numerous papers addressing the merits of

the proposed settlement, including motions to intervene, an expert

affidavit setting forth the estimates of their own damages, proposed

findings of fact and conclusions of law, and memoranda of law.

See White I, 822 F. Supp. at 1432 (Pet. App. at 287-88); White I/,

836 F. Supp. at 1501-04 (Pet. App. at 160-65); see also White III,

41 F.3d at 407-08 (Pet. App. at 14) ("In the present case, each of

the objectors either had minimum contacts with the forum or

submitted himself to the jurisdiction of the district court by

appearing through counsel to contest the merits of the settlement,

offering testimony, cross-examining witnesses, and filing numerous

memoranda of law regarding the settlement."). That conclusion,

which is factual in nature, should be accorded deference by this

Court. See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656,

665 (1987); NCAA v. Board of Regents, 468 U.S. 85, 98 n.15

(1984); Rodgers v. Lodge, 458 U.S. 613, 623 (1982).

There is no question the activities described above are legally

sufficient to constitute consent to jurisdiction in any context,

including in the context of a mandatory class action. As the Third

Circuit recentiy observed in Jn re Real Estate Title & Settlement

Services Antitrust Litigation, 869 F.2d 760 (3d Cir.), cert. denied,

493 U.S. 821 (1989) -- a case upon which Petitioners placed

significant reliance below -- "a party should be deemed to consent

to personal jurisdiction if it actually litigates the adequacy of

representation issue before the district court, or the underlying

merits of the class action, because in such a case the party has

shown a willingness to engage in extensive litigation in the forum."

Id. at 771.

Because there is no question that the District Court had a

proper basis upon which to exercise personal jurisdiction over

Petitioners, they have no right to the procedural protections

(including the opt-out right) prescribed in Shutts.’

” The District Court also enjoined the objectors’ individual actions

concerning the same player practices at issue in White. In light of

(continued...)

14

2. In Any Event, Shutts Would Not Require

an Opt-Out Right in this Case Because it

Involves Claims Predominantly for Injunc-

tive Relief

Even if Petitioners had not been subject to the District Court’s

jurisdiction, there would still not be a conflict with this Court’s

decision in Shutts because this case, unlike Shutts, involved claims

primarily for injunctive relief.

Shutts was a class action involving claims that were purely

monetary in nature. Shutts, 472 U.S. at 799. In ruling that the

Kansas state court had properly exercised jurisdiction over the

Shutts class, the Court concluded that, in class actions seeking

predominantly money damages, personal jurisdiction may be

exercised over an absent nonresident class member only if he has

been afforded individual notice and an opportunity to exclude

himself from the class. Jd. However, the Court specifically limited

its holding to “those class actions which seek to bind known

plaintiffs concerning claims wholly or predominantly for money

judgments." Id. at 811 n.3 (emphasis added). The Court expressly

cautioned that "[w]e intimate no view concerning other types of

class actions... ." /d.*

7(...continued)

the express findings of both the District Court and the Eighth

Circuit that the objectors had consented to the jurisdiction of the

class action court, however, objectors’ challenge to the District

Court’s injunction raises no issue worthy of this Court’s review.

* In dissenting from the dismissal of certiorari in Ticor Title Ins.

Co. v. Brown last term, three members of this Court expressly

noted the Court’s limitation on the scope of its holding in Shutts.

114 S. Ct. at 1363 ("although we held in /Shutts] that there is a

constitutional right to opt out of class actions brought in state court,

that holding was expressly ‘limited to those class actions which seek

to bind known plaintiffs concerning claims wholly or predominantly

for money judgments’") (emphasis added) (O’Connor, J., joined by

(continued...)

15

But for the District Court’s findings that each Petitioner's

minimum contacts or litigation conduct had subjected him to the

court’s jurisdiction, the instant case would be precisely the “type of

class action" about which the Court in Shutts intimated “no view."

The District Court twice made express findings that the plaintiff

class’ claims for structural, injunctive relief in this case predomi-

nated over its claims for damages. See White /, 822 F. Supp. at

1410-11 (Pet. App. at 222-24); White II, 836 F. Supp. at 1471-72

(Pet. App. at 70-71). The Eighth Circuit expressly affirmed these

findings, characterizing this class action as one "brought primarily

for injunctive relief." White Ill, 41 F.3d at 408 (Pet. App. at 14).

Because neither petition seriously challenges the lower courts’

"predominance" finding,’ the issue decided by Shutts is simply not

presented here. Moreover, because there is no basis for disturbing

the lower courts’ personal jurisdiction finding, the issue reserved by

Shutts is not presented either.

B. For the Same Reasons that No Shutts Issue Is

Presented, the Eighth Circuit’s Decision Does

Not Conflict with Ninth Circuit Authority

Petitioners claim that the decision below squarely conflicts with

a single decision in the Ninth Circuit, Brown v. Ticor Title

Insurance Co., 982 F.2d 386 (9th Cir. 1992), cert. dismissed, 114

S. Ct. 1359 (1994). Brown in no way calls into question or

otherwise conflicts with the extremely narrow holding of the Eighth

Circuit in this case.

8(.. continued)

Rehnquist C.J., and Kennedy, J., dissenting from dismissal of

certiorari).

* The Petitioners merely reiterate their view that the class action

involved claims for "substantial" damages (see Jones Pet. at 3-4;

Dusbabek Pet. at 8-9). Shutts, however, does not speak to “sub-

stantiality"; it speaks to "predominance."

16

na ta. ¢eDarnnanhcise

Brown involved a collateral attack by absent non-resident class

members to a mandatory class action settlement in which claims for

"substantial" money damages had been involved. The district court

granted defendants’ motion for summary judgment, holding that the

claims were barred under the doctrine of res judicata. Brown, 982

F.2d at 390.

The Ninth Circuit reversed, holding that while the absent class

members were bound by the injunctive relief provided by the

settlement agreement, the class members’ individual claims for

treble damages should proceed. Brown, 982 F.2d at 392. Purport-

ing to follow this Court’s decision in Shutts -- which the court

expressly recognized “was limited to claims ‘wholly or predomi-

nantly for money judgments’" -- the Ninth Circuit held that the

absent class members should have been provided an opportunity to

opt out of the prior class action. /d.'°

The Ninth Circuit in Brown and the Eighth Circuit in White

were deciding two very different issues. The Ninth Circuit was

charged specifically with determining what process was due to bind

absent non-resident class members who had not submitted to the

jurisdiction of the class action court in a case wholly or predomi-

nantly for money damages. The Eighth Circuit, on the other hand,

had the very different task of determining what process is due to

bind absent class members who were subject to the class action

court’s jurisdiction in a case predominantly for injunctive relief.

‘© This Court granted the Brown defendants’ petition for certiorari

on the single question of "[w]hether a federal court may refuse to

enforce a prior federal class action judgment, properly certified

under Rule 23, on the ground that absent class members have a

constitutional due process right to opt out of any class action which

asserts monetary claims on their behalf." Ticor Title Ins. Co. v.

Brown, 114 S. Ct. 56 (1993). After oral argument, by which time

"the parties had reached a settlement designed to moot the petition,"

the Court dismissed the writ as improvidently granted. Ticor Title

Ins. Co. v. Brown, 114 S. Ct. 1359, 1362 (1994).

17

There is no conflict between the Ninth Circuit’s decision in Brown

and the Eighth Circuit's decision in White.

Moreover, subsequent Ninth Circuit decisions undermine

Petitioners’ efforts to infer from Brown an absolute right to opt out

of all class actions properly certified under Rule 23 in which claims

for monetary relief are asserted. Less than seven months after the

Ninth Circuit’s decision in Brown, another panel of that court

decided Arata v. Nu Skin International, Inc., No. 92-15380, 1993

U.S. App. LEXIS 21747 (9th Cir. July 14, 1993), in which the

Ninth Circuit affirmed a district court’s certification and approval

of a Rule 23(b)(1) mandatory non-opt-out class settlement where

plaintiffs’ complaint had sought both injunctive relief and damag-

es.'' The Ninth Circuit there held:

The central issue in this action was the defendants’

conduct in implementing the Nu Skin marketing scheme.

The complaint plainly seeks, in addition to damages, both

equitable and injunctive relief. An opt-out provision

might create the risk of inconsistent or varying adjudica-

tions which could establish incompatible standards of

conduct for the defendants. ... Thus, the district court

did not abuse its discretion in certifying a mandatory class

under Rule 23(b)(1)(A) or (B).

Id. at *6-*7 (emphasis added); accord Arnold v. United Artists

Theatre Circuit, Inc., 158 F.R.D. 439, 464 (N.D. Cal. 1994)

("Although some of the opinion’s language is a little broad and

imprecise, the opinion [in Brown] relies entirely on [Shutts]. . . .

‘Shutts is limited to claims wholly or predominantly, for money

damages.’ Thus, it seems clear that under 7icor and Shutts, the

constitutional due process requirement of notice to absent class

members applies only to cases where monetary damages ‘predomi-

nate.’") (emphasis in original) (citations omitted).

'' Because Arata is an unpublished opinion, the decision has been

reprinted and included in the Appendix hereto.

18

In sum, subsequent cases confirm that Brown was not intended

to grant absent class members opt-out rights in all Rule 23 class

actions involving claims for monetary damages. Indeed, in the

nearly three years since it was decided, not one court, either inside

or outside the Ninth Circuit, has relied on Brown for the proposi-

tion that opt-out rights are constitutionally required in all class

actions seeking money damages.

fll. RULES 23(b)(1) AND 23(b)(2) WERE NOT INTENDED,

AND HAVE NEVER BEEN CONSTRUED, TO PRE-

CLUDE CERTIFICATION OF MANDATORY CLASSES

WHERE CLAIMS FOR MONETARY RELIEF ARE

INVOLVED

Federal Rule of Civil Procedure 23 has governed class actions

in the federal courts for nearly 30 years. During that period, the

lower federal courts have fashioned a remarkably uniform and

consistent view of the proper application of Rule 23.

One principle that has become well-settled, though nowhere

specifically prescribed in the Rule itself, is that class actions seeking

solely or predominantly money damages should not be certified

under the mandatory class certification provisions of Rule 23(b)(1)

or (b)(2) unless a limited fund is at issue. By the same token,

however, the lower courts have consistently held that where a class

seeks predominantly injunctive relief, even though monetary claims

may also be asserted, mandatory class certification under Rules

23(b)(1) and/or (b)(2) is perfectly appropriate.'? Indeed, every

federal circuit court to have considered the issue has upheld the use

of mandatory, non-opt-out class actions under Rules 23(b)(1) and/or

‘2 As three members of this Court recognized just last term, "[t}he

lower courts have consistently held that the presence of monetary

damage claims does not preclude class certification under Rules

23(b)(1)(A) and (b)(2)." Ticor Title Ins. Co. v. Brown, 114 S. Ct.

i359, 1363 (1994) (O’Connor, J., joined by Rehnquist, C.J., and

Kennedy, J., dissenting from dismissal of certiorari).

19

(b)(2) in cases that have involved claims for monetary relief, as

long as injunctive claims predominated."

Moreover, this Court has never questioned the propriety of

mandatory class certification under Rules 23(b)(1) and/or (b)(2) in

such cases and, in fact, expressly upheld the use of a mandatory

class in a case involving monetary claims for government benefits.

Califano v. Yamasaki, 442 U.S. 682, 701-03 (1979); see also

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (vacating and

remanding Rule 23(b)(2) mandatory class action for employment

discrimination because lower court had failed to award monetary

backpay relief) (emphasis added).'*

‘5 See, e.g., Nottingham Partners v. Trans-Lux Corp., 925 F.2d

29, 31-33 (Ist Cir. 1991); Robertson v. NBA, 556 F.2d 682, 685

(2d Cir. 1977); Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956,

962-66 (3d Cir. 1983); Robinson v. Lorillard Corp., 444 F.2d 791,

801-02 (4th Cir.), cert. dismissed, 404 U.S. 1006 (1971); King v.

South Cent. Bell Tel. & Tel. Co., 790 F.2d 524, 528-31 (6th Cir.

1986); Williams v. Burlington N., Inc. , 832 F.2d 100, 103-04 (7th

Cir. 1987), cert. denied, 485 U.S. 991 (1988); Reynolds v. NFL,

584 F.2d 280, 283-85 (8th Cir. 1978); Probe v. State Teachers’

Retirement Sys., 780 F.2d 776, 780 (9th Cir.), cert. denied, 476

U.S. 1170 (1986); Rich v. Martin Marietta Corp., 522 F.2d 333,

339-42 (10th Cir. 1975); Howard v. McLucas, 782 F.2d 956, 961

(11th Cir. 1986); Larionoff v. United States, 533 F.2d 1167, 1181-

82 n.36 (D.C. Cir. 1976), aff'd, 431 U.S. 864 (1977).

'* Petitioners’ repeated intimations that the Ninth Circuit has

demonstrated a divergent or more "enlightened" view regarding the

proper utilization of mandatory class actions is wrong. The Ninth

Circuit has routinely certified mandatory classes despite the

existence of claims for monetary relief. See, e.g., Arata v. Nu Skin

Int’l, Inc., No. 92-15380, 1993 U.S. App. LEXIS 21747 (9th Cir.

July 14, 1993) (reprinted in Appendix hereto); Probe v. State

Teachers’ Retirement Sys., 780 F.2d 776 (9th Cir.), cert. denied,

476 U.S. 1170 (1986); Dosier v. Miami Valley Broadcasting Corp. ,

656 F.2d 1295, 1299 (9th Cir. 1981); Saunders v. Naval Air

(continued. ..)

20

There is nothing in the text of Rule 23, or in the Advisory

Committee’s Notes that accompanied its adoption, to suggest that

any other interpretation of Rule 23 was intended or is even reason-

able. To the contrary, the Advisory Committee’s Notes confirm

that mandatory class certification is appropriate in cases predomi-

nantly involving claims for injunctive relief but also having

significant damage claims.

The Advisory Committee provides as examples of appropriate

cases for treatment under Rule 23(b)(1) a number of causes of

action that would typically include claims for monetary relief:

actions for damages against a common or limited fund, actions by

shareholders to compel the declaration of a dividend, and litigations

instituted by security holders or other beneficiaries of a trust against

the trustee for breaches of his fiduciary duties. See Amendments to

Rules of Civil Procedure, Advisory Committee's Notes to Rule 23,

39 F.R.D. 69, 100-01 (1966) (hereinafter "Advisory Notes").'°

Similarly, the fact that the Advisory Committee excludes from

certification under (b)(2) claims "exclusively or predominantly [for]

money damages” necessarily implies that claims for money damages

'4(_. continued)

Rework Facility, 608 F.2d 1308, 1312 (9th Cir. 1979); EEOC v.

General Tel. Co. , 599 F.2d 322, 334 (9th Cir. 1979), aff'd on

other grounds, 446 U.S. 318 (1980); Elliott v. Weinberger, 564

F.2d 1219, 1228 (9th Cir. 1977), aff'd in relevant part sub nom.

Califano v. Yamasaki, 442 U.S. 682 (1979).

'S’ Among the cases cited by the Advisory Committee as examples

of cases that typically would be eligible for mandatory (b)(1)

certification were: Zahn v. Transamerica Corp., 162 F.2d 36 (3d

Cir. 1947) (securities class action brought by former minority

stockholder against Delaware parent corporation to recover class

damages for fraud); Edgerton v. Armour & Co., 94 F. Supp. 549

(S.D. Cal. 1950) (class action brought by former stockholders of

dissolved corporation for sums due on contract); York v. Guaranty

Trust Co., 143 F.2d 503 (2d Cir. 1944) (class action brought by

beneficiary of trust against trustee to recover damages for breach of

fiduciary duties), rev'd on other grounds, 326 U.S. 99 (1945).

21

that do not predominate may be certified. Advisory Notes, 39

F.R.D. at 102. Such interpretation is confirmed by the types of

actions the Advisory Committee lists as illustrative cases for

mandatory class certification under Rule 23 (b)(2): civil rights

cases, antitrust cases for illegal price discrimination, and actions

alleging patent infringement -- all of which could, and usuaily do,

include claims for money damages. See id.

In sum, the consistent treatment of mandatory class actions

brought primarily for injunctive relief, but also involving damage

claims, has established a sound rule of law that need not be

reviewed by this Court. It can fairly be said that "[Rule 23(b)(1)’s]

validation is its pedigree." Burnham v. Superior Court, 495 U.S.

604, 621 (1990) (Scalia, J., joined by Rehnquist, C.J., and Kenne-

dy, J., concurring).

CONCLUSION

For all of the foregoing reasons, the petitions should be

denied.

Respectfully submitted,

Herbert Dym Frank Rothman*

Gregg H. Levy Shepard Goldfein

COVINGTON & BURLING William L. Daly

1201 Pennsylvania Avenue, N.W. SKADDEN, ARPS, SLATE,

P.O. Box 7566 MEAGHER & FLOM

Washington, D.C. 20044-7566 300 South Grand Avenue

(202) 662-6000 Los Angeles, CA 90071

(213) 687-5000

Attorneys for Respondents National Football League, et al.

May 1995 *Counsel of Record

23