Opposition Brief — Cameron v. Anheuser-Busch, Inc.

| Supreme Ceort, U.S.

| FILED

| APR 6 1998

GFRICE OF THE CLERK

No. 97-1468

IN THE

Supreme Court of the United States

+

OCTOBER TERM, 1997

FRED CAMERON, JEFF BOWER

DAN McWILLIAMS, and DAVID CORTEZ,

Petitioners,

Vv.

ANHEUSER BUSCH, INC., ROBERT WARNER, GEORGE

LOGAN, and RUSS WHITMEYER AND ASSOCIATES, INC.,

Respondents.

*

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

+

RESPONDENTS’ BRIEF IN OPPOSITION TO PETITION

¢

JOHN B. GOLPER (Counsel of Record)

JEFFREY P. FUCHSMAN

BALLARD, ROSENBERG & GOLPER

10 Universal City Plaza, 16th Floor

Universal City, California 91608-1097

(818) 508-3700

Counsel for Respondents

ANHEUSER-BUSCH, INC., ROBERT

WARNER, GEORGE LOGAN, AND RUSS

WHITMEYER AND ASSOCIATES, INC.

a

i

PARTIES TO THE PROCEEDING

The petition accurately lists the parties to the proceeding.

Respondent Anheuser-Busch, Inc.’s parent company is

Anheuser-Busch Companies, Inc. The only non-wholly

owned subsidiary of respondent Anheuser-Busch, Inc. is

Somerset Distributors, LLC. Respondent Russ Whitmeyer

And Associates, Inc. does not have any parent company or

non-wholly owned subsidiaries.

ot onal is

ii

TABLE OF CONTENTS

Page

PARTIES TO THE PROCEEDING ............. i

TABLE OF CONTOITS 5555. as i

TABLE OF AUTIOORITINS | 2. 5.5 iv |

STATEMENT OF THECASE «0... 055005058.

A. The Petition Mischaracterizes The Factual

Circumstances Surrounding The August 18, 1995

Deg Sem Al TR 6 65 ek eee os 2

B. ABI’s Right To Conduct The August 18, 1995

Search Has Been Upheld By Five Separate

APONER oo eS Gee 4

REASONS FOR DENYING THE PETITION ..... 5

A. The Ninth Circuit Order Is Non-precedential . 5

B. The Ninth Circuit’s Order Is Consistent With This

Coust’s Sento St Cee Sk i eo ee eS 5

C. The Ninth Circuit’s Order Is Consistent With

Cor Tees Cees Cees oa 8

D. The Full Ninth Circuit Unanimously Rejected

Petitioners’ Suggestion For Rehearing

We RE i Cae a ee eee 10

E. The Ninth Circuit’s Order Is Consistent With

Decisions From Other Circuits .......... 10

ee

ill

CONTENTS - Continued

i Sees ee eee ee ne tT |

iV

TABLE OF AUTHORITIES

Page

Cases:

In Re Amoco Petroleum Additives Co.

Pe ek Pe Ae es Se ok ew ees 10

Bagby v. General Motors Corp.

Fre Fig Ore Cee ee a i wv oe eee 11

Blanchard v. Simpson Plainwell Paper Co.

925 F. Supp. S10 (W.D. Mich. 1993)........:. 11

Consolidated Rail Corp. v. Railway Labor Exec. Assn.

491 U.S. 299, 109 S. Ct. 2477,

SD 1s Bs Be RA a a a oa 6

Caterpillar, Inc. v. Williams

482 U.S. 386, 107 S. Ct. 2425,

OO Gi ee SO A rs ak ee ee 5

Dancy v. Fina Oil & Chemical Co.

921 F. Sump. 1532 (.0. Tex: W996). 6. ss 11

Espinal v. Northwest Airlines

We FOG PASE Coe Gk FO ee eR 9

Felt v. Atchison, Topeka & Santa Fe Railway Co.

OS: .SR OG CO: Se i a as 9

Hawaiian Airlines v. Norris

512 U.S. 246, 114 S. Ct. 2239,

LZe ie ee ee eee Ce ea eS Me Re oe oe

Vv

AUTHORITIES - Continued

Page

Jackson v. Liquid Carbonic Corporation

863 F.2d 111 (1st Cir. 1988), cert. denied,

490 U.S. 1107, 109 S. Ct. 3158,

104 L. Ed. 2d 1021 (1989) ...---- eer eees 11

Kelly v. Mercoid Corporation

776 F. Supp. 1246 (N.D. Ill. Ee 11

Kirby v. Allegheny Beverage Corp.

811 F.2d 253 (4th Cir. 1987)... -- eee eee: 11

Laws v. Calmat

852 F.2d 430 (9th Cir. 1988) ..----- seers 9

Lingle v. Norge Div. of Magic Chef

486 U.S. 399, 108 S. Ct. 1877,

100 L. Ed. 2d 410 (1988) 6. 2 ee ee ees 6

Livadas v. Bradshaw

512 U.S. 107, 114 S. Ct. 2068,

129 L. Ed. 2d 93 (1994) .....---> G6 Teco

Majors v. U.S. Air, Inc.

525 F. Supp. 853 (D. Md. 1981) ...----+-+>: 11

Mock v. T.G. & Y. Stores Co.

971 F.2d 522 (10th Cir. 1992) ...--------> 10

Proffitt v. International Paper Co.

953 F. Supp. 207 (S.D. Ohio 1996) ..------ 11

vi

AUTHORITIES - Continued

Ramirez v. Fox Television Station

998 F.2d 743 (9th Cir. 1993) ..... iF ah oes tera 7

Romero v. Hilton Hotels Corp.

137 L.R.R.M. (BNA) 2647 (D. Hawaii 1991) ... 9

Schlacter-Jones v. General Tel. of California

Pon Fae Soo Coe e. BPE bie 8, 10

Scott v. Machinists Automotive Trades

Dist. Lodge No. 190

Gat ae cee cee Ge, IT). cs ek eee )

Stikes v. Chevron USA, Inc.

914 F.2d 1265 (9th Cir. 1990),

cert. denied, 500 U.S. 917, 111 S. Ct. 2015,

LEN Bcc Ses ee es 8 Ee oe eee 8,9

Strachan v. Union Oil Co.

Fan ae: pan. Coe Cal. ee. oe se ee aw 64 ll

Sweigart v. Delmotte

148 L.R.R.M. (BNA) 2413 (E.D. Pa. 1994),

affirmed, 74 F.3d 1228 (3rd Cir. 1995) ...... 10

Utility Workers of America, Local No. 246

v. Southern California Edison, Co.

852 F.2d 1083 (9th Cir. 1988),

cert. denied, 489 U.S. 1078, 109 S. Ct. 1530,

DUD Bev: Goes Sl ee RA PP ae Oe ae 8

Vil

AUTHORITIES - Continued

Page

Wall v. Americold Corp.

1997 U.S. Dist. LEXIS 10366

ae ae Ue eet ee eta 1]

Statutes:

6 55 SE Gaeien 2S) | 4 vias 1 0 ¥ 88 we eee 7

29 U.S.C. Section 185 .....- cee er errerres l

42 U.S.C. Section 1983 .....+-++-++es> Oe ae

Cal. Labor Code Section 203 ...-----++-0+) 7,8

Rules:

Ninth Circuit Rule 36-3 ....-- +--+ seers Pe.

l

STATEMENT OF THE CASE

The petition seeks this Court’s review of the Ninth

Circuit’s unpublished one-line order affirming the District

Court’s order granting summary judgment for respondents.

("We AFFIRM the District Court’s grant of summary

judgment to appellees.")' Petitioners’ request for rehearing

was denied by the Ninth Circuit panel deciding the appeal

(Circuit Judges Pregerson, D.W. Nelson and Hawkins), and

the full Ninth Circuit unanimously rejected petitioners’

suggestion for rehearing en banc.’ Petitioners argue review

of the Ninth Circuit’s order is warranted to clear up the

"confusion" in the Ninth Circuit and other courts over the

scope of preemption under Section 301 of the Labor

Management Relations Act ("LMRA") [29 U.S.C. § 185].

As demonstrated below, this Court’s review of the Ninth

Circuit's order is unwarranted. The unpublished one-line

order at issue is non-precedential.? The order hardly creates

any conflicts between the circuits to be resolved by this

Court. Moreover, the Ninth Circuit’s order is completely

‘The Ninth Circuit's October 23, 1997 order affirming the

summary judgment for respondents is attached to the petition as

Appendix A. The July 8, 1996 judgment for respondents and the

District Court’s July 8, 1996 order granting respondents summary

judgment are attached to the petition as Appendix C and Appendix

D, respectively.

"The December 12, 1997 order denying the petition for

rehearing and suggestion for rehearing en banc is attached as

Appendix B to the petition.

*Pursuant to Ninth Circuit Rule 36-3, the order may not even

be cited to or by other courts in the Ninth Circuit.

2

consistent with a long line of earlier Ninth Circuit decisions

which uniformly applied Section 301 preemption principles

to bar state law privacy and related claims under nearly

identical circumstances, as well as with numerous decisions

from other circuits. Contrary to petitioners’ assertion, the

Ninth Circuit’s order is also entirely consistent with this

Court’s Section 301 cases, including the decisions in Livadas

v. Bradshaw, 5i2 U.S. 107, 114S. Ct. 2068, 129 L. Ed. 2d

93 (1994), and Hawaiian Airlines v. Norris, 512 U.S. 246,

114 S. Ct. 2239, 129 L. Ed. 2d 203 (1994).

A. The Petition Mischaracterizes The Factual

Circumstances Surrounding The August 18, 1995 Drug

Search At Issue

The petition grossly exaggerates the factual circumstances

surrounding the August 18, 1995 drug search at issue and

ignores facts that are important for the Court’s consideration

of the petition. The relevant facts and supporting record

evidence are set forth in the District Court’s order granting

respondents summary judgment (Appendix D to the petition).

Most notably, the petitioners were all employed with

respondent Anheuser-Busch, Inc. ("ABI") pursuant to a

collective bargaining agreement ("CBA") between ABI and

their respective unions. The CBA’s include provisions for

drug testing, discipline and discharge, safety, and a grievance

and arbitration procedure to challenge alleged violations of

the CBA. The CBA covering petitioners McWilliams and

Cortez also contains an express "management rights" clause.

re ore

Pe PDE A ee EARP AP

3

For at least ten years before the August 18, 1995 search,

ABI posted conspicuous signs at the employee entrances and

exits advising employees of ABI’s right to search employees

and their vehicles parked on ABI property. ABI had an

established practice to randomly search employees and

employee property on ABI premises, and to discipline

employees that refused to allow the search. ABI even used

trained "sniff dogs” in an earlier locker room search. None

of petitioners’ unions ever challenged ABI’s right to conduct

searches, or to discipline employees as a result of the search

or for refusing to allow the search, prior to the August 18,

1995 parking lot search at issue. The August 18, 1995

search was also consistent with ABI’s longstanding policy

prohibiting use or possession of drugs in the workplace.

ABI retained respondent Russ Whitmeyer And Associates,

Inc. ("Whitmeyer"), a company with substantial experience

assisting employers with drug elimination programs, to

conduct the August 18, 1995 parking lot search. Whitmeyer

used trained drug sniffing dogs to identify vehicles containing

drug residue. If an employee's vehicle was identified as

"positive," the employee was taken to a private room, along

with his union steward, and asked to consent to a search of

his vehicle and possessions. If the suspected employee

refused to allow the search, the employee was suspended

subject to termination. If illegal drugs or paraphernalia were

discovered during the search, the employee was also

suspended subject to termination. At no time during the

search operation was anyone, including the petitioners, ever

physically prevented from leaving the facility or subjected to

any physical force.

4

B. ABI’s Right To Conduct The August 18, 1995 Search

Has Been Upheld By Five Separate Arbitrators

Petitioners Cameron and Bower were terminated as a

result of the search; Cameron for refusing to consent to the

search, and Bower for possession of drug paraphernalia.

Petitioners Cameron and Bower filed grievances under the

CBA challenging their terminations, and ABI’s right to

conduct the August 18, 1995 search, generally.* The

grievances were pursued to arbitration, and both arbitrators

held that ABI had the management right to conduct the

August 18, 1995 search based on the terms of the CBA and

its established practice to search employees on its property.

Three other arbitrators reached the same conclusion in

connection with grievances that were filed by other

employees that were either terminated for refusing to consent

to a search, or because drugs or paraphernalia were found in

their vehicles.’ In all five cases, the unions asserted that

ABI breached the CBA in conducting the search. In all five

cases, the arbitrators concluded that the search was permitted

by the CBA. It is disingenuous, at best, for petitioners to

assert that the CBA’s are not at issue.

“Petitioner McWilliams also filed a grievance challenging

ABI’s right to conduct the search but the grievance was resolved

by his Union and ABI at the pre-arbitration step of the grievance

procedure.

*These three employees filed their own action, and are

represented by petitioners’ attorney. Their lawsuit was also

dismissed based on Section 301 preemption, and the appeal before

the Ninth Circuit is still pending.

5

REASONS FOR DENYING THE PETITION

The Ninth Circuit’s short, unpublished order summarily

affirming the summary judgment for respondents is non-

precedential. The order is consistent with other Ninth Circuit

decisions, decisions from other circuits, and this Court’s

Section 301 cases. The full Ninth Circuit unanimously

rejected petitioners’ suggestion for a rehearing en banc.

There is no "confusion" in the lower courts or conflict

between the circuits as to any question raised by this case

which is of such importance to warrant relief by this Court.

A. The Ninth Circuit Order Is Non-precedential

The Ninth Circuit’s order summarily affirms the District

Court’s order granting respondents summary judgment. The

order does not explain the basis for the ruling. (Appendix A)

The order cannot be cited to or by other courts in the Ninth

Circuit (Ninth Circuit Rule 36-3), much less by courts in

other circuits. If the Section 301 issues raised by this case

are as important and far reaching as petitioners suggest, they

deserve a full discussion and analysis by a court of appeal

before consideration by this Court. There is no sound reason

for this Court to decide broad preemption issues based on the

Ninth Circuit’s one-line order.

B. The Ninth Circuit’s Order Is Consistent With This

Court’s Section 301 Cases

The Ninth Circuit’s order is entirely consistent with this

Court’s Section 301 preemption cases. As this Court has

held, claims founded on rights created by a CBA are

preempted by Section 301. Caterpillar, Inc. v. Williams, 482

U.S. 386, 394, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987).

6

Moreover, state law claims which are substantially dependent

on the analysis of a CBA are also preempted by Section 301.

Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 405-6,

108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988). In considering

whether a state law claim requires analysis of a CBA and,

therefore, is preempted, it is necessary to consider both

express and implied terms of the CBA. Consolidated Rail

Corp. v. Railway Labor Exec. Assn., 491 U.S. 299, 109 S.

Ct. 2477, 105 L. Ed. 2d 250 (1989) ("Conrail").

This Court’s established Section 301 analysis has not

been limited by Livadas or Hawaiian Airlines (referred to by

petitioners as “Norris"). In Hawaiian Airlines, this Court

held that the plaintiff's state law "whistle blower" claim was

not preempted by the Railway Labor Act ("RLA") because

only the employer’s motivation for the plaintiff's discharge

was at issue, not any rights or provisions under the CBA.

Hawaiian Airlines, 129 L. Ed. 2d at 220. Significantly, this

Court relied heavily on the earlier decision in Conrail, supra.

In Conrail, this Court concluded that an employer’s unilateral

implementation of a drug testing policy was a "minor

dispute" within the meaning of the RLA and, therefore,

subject to the grievance and arbitration procedures of the

CBA even though the CBA did not contain express provisions

on drug testing. In discussing the Conrail decision, this

Court noted that characterizing a dispute as "minor" under

the RLA “is another way of saying that the dispute does not

involve rights that exist independent of the CBA." Hawaiian

Airlines, 129 L. Ed. 2d at 219 (emphasis added).

The instant case does not involve a state law whistle

blower claim that only concerns respondents’ motives. On

the contrary, unlike in Hawaiian Airlines, respondents’

motives are of no consequence here. Moreover, this Court’s

recognition that privacy rights relating to drug testing do not

7

exist independent of a CBA further supports the Ninth

Circuit’s order that petitioners’ state law privacy and related

claims are preempted by Section 301 _

In Livadas, a unionized employee brought a civil rights

action against California's wage enforcement agency under

42 U.S.C. § 1983 based on the agency’s refusal to enforce

the employee’s statutory claim for late payment of wages

under Cal. Labor Code § 203. This Court held that the

agency’s blanket refusal to enforce unionized employees’

statutory claims for late payment of wages under Cal. Labor

Code § 203 interfered with the employees’ exercise of union

activities and,. therefore, was preempted by the National

Labor Relations Act ("NLRA"), 29 U.S.C. § 151 ef seq.

Livadas, 129 L. Ed. 2d at 101-2. This Court rejected the

agency’s argument that Section 301 prohibited its

enforcement of Cal. Labor Code § 203 for unionized

employees. In concluding that Section 301 did not compel

the agency’s enforcement policy, this Court noted that

Section 301 preemption has generally been applied to

preclude state laws relating to the interpretation or

enforcement of a CBA, or re-labeled state tort claims that

derive from the CBA (like petitioners’ claims here).

Livadas, 129 L. E. 2d at 109. Where the state law claim is

independent of rights under a CBA, Section 301 preemption

does not apply. Livadas, 129 L. Ed. 2d at 110. This Court

held that Section 301 did not bar the agency's enforcement of

‘It is also noteworthy that the holding in Hawaiian Airlines is

based on the same rationale applied by the Ninth Circuit when

holding state law discrimination claims are not preempted by

Section 301. Ramirez v. Fox Television Station, 998 F.2d 743,

748-49 (9th Cir. 1993) (state law discrimination claim is not

preempted by Section 301 because only the employer’s

discriminatory intent is at issue).

8

Cal. Labor Code § 203 because the employee’s entitlement

to a statutory penalty for her employer’s late payment of

wages was not derived from the CBA. /d. Significantly,

this Court noted, however, that even a claim under Cal.

Labor Code § 203 could be preempted by Section 301 where

the CBA was at issue. Livadas, 129 L. Ed. 2d at 110-11 n.

19.

The Ninth Circuit’s order here is completely consistent

with Livadas, Hawaiian Airlines, and this Court’s other

Section 301 cases. There is no compelling reason to review

the Ninth Circuit’s order.

C. The Ninth Circuit’s Order Is Consistent With Other

Ninth Circuit Cases

The order affirming summary judgment for respondents

is also supported by other Ninth Circuit cases holding state

law privacy and related claims are preempted by Section 301

under nearly identical circumstances. Schlacter-Jones v.

General Tel. of California, 936 F.2d 435, 440-42 (9th Cir.

1991) (Section 301 preempts state law privacy, fraud,

conspiracy, intentional infliction of emotional distress,

contract and covenant of good faith and fair dealing claims

arising out of employer’s unilaterally imposed drug testing

policy); Stikes v. Chevron USA, Inc., 914 F.2d 1265, 1269

(9th Cir. 1990), cert. denied, 500 U.S. 917, 111 S. Ct.

2015, 114 L. Ed. 2d 101 (1991) (state law claims for

invasion of privacy, wrongful discharge and intentional

infliction of emotional distress arising out of employer’s

vehicle search policy preempted by Section 301); Utility

Workers of America, Local No. 246 v. Southern California

Edison, Co., 852 F.2d 1083, 1086 (9th Cir. 1988), cert.

denied, 489 U.S. 1078, 109 S. Ct. 1530, 103 L. Ed. 2d 835

(1989) (state law privacy and wrongful termination claims

9

arising out of employer’s unilateral random drug testing

program preempted by Section 301); Laws v. Calmat, 852

F.2d 430, 433 (9th Cir. 1988) (Section 301 preempts state

law privacy claim based on employer’s unilateral drug testing

policy); Scott v. Machinists Automotive Trades Dist. Lodge

No. 190, 827 F.2d 589, 594 (9th Cir. 1987) (defamation

claim arising out of misconduct investigation preempted by

Section 301).’

There is nothing in Hawaiian Airlines ot Livadas that

would warrant review of the Ninth Circuit’s order here.

These cases actually further support the Ninth Circuit’s

preemption ruling because they reaffirm that claims which do

not exist independent of a CBA, like petitioners’ claims here,

are preempted. As this Court has held, claims relating to an

employer's drug testing/search policy are not independent of

a CBA. The earlier Ninth Circuit cases all follow this

principle.*

"While the Ninth Circuit has not considered when a false

imprisonment claim may be preempted, it has repeatedly held

claims which are merely "peripheral" to a preempted privacy claim

are also preempted. Stikes, 914 F.2d at 1270. See Romero v.

Hilton Hotels Corp., 137 L.R.R.M. (BNA) 2647, 2649-50 (D.

Hawaii 1991) (assault, battery, false imprisonment, and infliction

of emotional distress claims arising out of employer’s theft

investigation preempted by Section 301).

8Petitioners incorrectly assert that recent Ninth Circuit

decisions have adopted a more narrow application of Section 301

preemption after Livadas and Hawaiian Airlines. Felt v. Atchison,

Topeka & Santa Fe Railway Co., 60 F.3d 1416 (9th Cir. 1995);

Espinal v. Northwest Airlines, 90 F.3d 1452 (9th Cir. 1996).

These cases follow earlier Ninth Circuit decisions holding that

statutory discrimination claims are non-negotiable and, therefore,

10

D. The Full Ninth Circuit Unanimously Rejected

Petitioners’ Suggestion For Rehearing En Banc

Not only does the Ninth Circuit’s order comport with its

prior Section 301 decisions, the full Ninth Circuit

unanimously rejected petitioners’ suggestion for a rehearing

en banc. (Appendix B) That not even one Circuit Judge

voted to rehear this case en banc further demonstrates that

the order is in the mainstream, and does not warrant further

review by this Court.

E. The Ninth Circuit’s Order ts Consistent With

Decisions From Other Circuits

Far from creating a conflict between the circuits, the

Ninth Circuit’s order is consistent with the great weight of

authority from other circuits as well. See, e.g., Sweigart v.

Delmotte, 148 L.R.R.M. (BNA) 2413, 2415-17 (E.D. Pa.

1994), affirmed, 74 F.3d 1228 (3rd Cir. 1995) (Section 301

preempts state law violation of privacy claim resulting from

employer’s surveillance of employee bathroom); Mock v.

T.G. & Y. Stores Co., 971 F.2d 522, 529-30 (10th Cir.

1992) (state law claims for invasion of privacy, defamation,

false imprisonment, intentional infliction of emotional

distress, wrongful termination, and covenant of good faith

and fair dealing arising from employer’s interrogation of

employees were preempted by Section 301); In Re Amoco

Petroleum Additives Co., 964 F.2d 706, 710 (7th Cir. 1992)

(state law claims for invasion of privacy and infliction of

emotional distress based on employer’s use of surveillance

not preempted by Section 301. On the other hand, privacy and

related claims are negotiable, and are preempted by Section 301.

Schlacter-Jones, 936 F.2d at 442.

11

cameras in employee locker room are preempted by Section

301); Bagby v. General Motors Corp., 976 F.2d 919, 921-22

(Sth Cir. 1992) (defamation and intentional infliction claims

arising out of theft investigation preempted); Jackson v.

Liquid Carbonic Corporation, 863 F.2d 111, 119 (1st Cir.

1988), cert. denied, 490 U.S. 1107, 109 S. Ct. 3158, 104 L.

Ed. 2d 1021 (1989) (state law invasion of privacy claim

based on employee’s termination for failing drug test

preempted by Section 301); Kirby v. Allegheny Beverage

Corp., 811 F.2d 253, 256 (4th Cir. 1987) (invasion of

privacy claim based on employer’s request to search

employee’s person and vehicle preempted by Section 301);

Strachan v. Union Oil Co., 768 F.2d 703, 705-6 (Sth Cir.

1985) (defamation, false imprisonment, and false arrest

claims arising out of drug investigation preempted by Section

301); Blanchard v. Simpson Plainwell Paper Co., 925 F.

Supp. 510 (W.D. Mich. 1995) (false imprisonment claim

arising out of drug investigation preempted); Kelly v.

Mercoid Corporation, 776 F. Supp. 1246, 1253-55 (N.D. Ill.

1991) (state law privacy claim based on employee’s

termination for refusing urinalysis test preempted by Section

301); Majors v. U.S. Air, Inc., 525 F. Supp. 853, 857 (D.

Md. 1981) (false imprisonment and defamation claims arising

out of theft investigation preempted).

Even petitioners recognize that the lower courts generally

continue to hold state law privacy and related claims are

preempted by Section 301. Proffitt v. International Paper

Co., 953 F. Supp. 207, 211-12 (S.D. Ohio 1996); Dancy v.

Fina Oil & Chemical Co., 921 F. Supp. 1532, 1537-38

(E.D. Tex. 1996); Wall v. Americold Corp., 1997 U.S. Dist.

LEXIS 10366 (E.D. Pa. 1997).

Petitioners argue that the lower courts are "confused"

and need further guidance on the application of Section 301

Scccc=_

12

to privacy and related claims. Respondents disagree. The

few district court or state court decisions that have concluded

privacy related claims are not preempted are contrary to the

great weight of authority. These cases are inconsistent with

the mainstream decisions on Section 301 preemption. That

petitioners and a few, isolated lower courts may be

"confused" does not warrant review of the Ninth Circuit’s

order.

CONCLUSION

For all the foregoing reasons, the petition should be

denied.

DATED: March 31, 1998

Respectfully submitted,

JOHN B. GOLPER (Counsel of Record)

JEFFREY P. FUCHSMAN

BALLARD, ROSENBERG & GOLPER

10 Universal City Plaza, 16th Floor

Universal City, California 91608-1097

(818) 508-3700

Counsel for Respondents

ANHEUSER-BUSCH, INC., ROBERT

WARNER, GEORGE LOGAN, AND RUSS

WHITMEYER AND ASSOCIATES, INC.