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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1118

## Text

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A. The Ninth Circuit Order Is Non-precedential . 5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

---

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