Gulf Oil Company v. Bernard Brief for the United States and the EOC as Amici Curiae
Public Court Documents
March 1, 1981
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Brief Collection, LDF Court Filings. Gulf Oil Company v. Bernard Brief for the United States and the EOC as Amici Curiae, 1981. 26d6dcf5-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0c7c6a89-9835-47e1-8ce6-bc5cd8281a37/gulf-oil-company-v-bernard-brief-for-the-united-states-and-the-eoc-as-amici-curiae. Accessed October 10, 2025.
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No. 80-441
3n % ftupran? (Erntrl at tip? luitPii States
October Term, 1980
Gulp Oil Company, et al., petitioners
v.
Wesley P. Bernard, et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES AND THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICI CURIAE
Wade H. McCree, Jr.
Solicitor General
James P. Turner
Acting Assistant Attorney General
Lawrence G. Wallace
Deputy Solicitor General
Harlon L. Dalton
Assistant to the Solicitor General
Jessica Dunsay Silver
Carol E. Heckman
Attorneys
Department of Justice
Leroy D. Clark
General Counsel
Equal Employment
Washington, D.C. 20530
(202) 633-2217
Opportunity Commission
Washington, D.C. 20506
3tt % (& m x t of tljp M nxteb BlatPB
October Term, 1980
No. 80-441
Gulf Oil Company, et al., petitioners
v.
Wesley P. Bernard, et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES AND THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICI CURIAE
QUESTION PRESENTED
Whether the district court, in an uncertified class ac
tion alleging systematic employment discrimination based
on race, can impose blanket restrictions on communica
tions by the named plaintiffs and their attorneys with
potential class members, absent a showing of actual or
threatened misconduct.
(i)
Interest of the United States and the Equal Employ
ment Opportunity Commission -........................ 1
Statement ....................... 2
Summary of argument....................................................... 8
Argument:
The district court’s order, which imposes broad re
strictions on communications between the parties
or their attorneys and potential class members, is
not an appropriate exercise of the court’s power
to govern class action practice and fails to satisfy
first amendment standards ............................... ....... 9
A. The district court’s order is not an “appro
priate” one under rule 23(d) absent a show
ing of actual or threatened misconduct by re
spondents of their attorneys ................... ......... 11
B. The district court’s order imposes an uncon
stitutional restraint on speech _____________ 21
Conclusion .............................................................. ............... 33
Appendix............................................ la
TABLE OF AUTHORITIES
Cases:
Ace Heating and Plumbing Co. V. Crane Co., 453
F.2d 30 ......... ............ 15
Air Crash Disaster at Fla. Everglades on Dec. 29,
1972, In re, 549 F.2d 1006 ........ ........................... 12-13
Albermarle Paper Co. V. Moody, 422 U.S. 405 ....... 10
Alexander V. Gardner-Denver Co., 415 U.S. 36..... 1, 9,19
American Finance System, Inc. V. Harlow, 65
F.R.D. 572 ...... ............. ............................................ 18-19
American Pipe & Constr. Co. V. Utah, 414 U.S.
538 ................................ 11
TABLE OF CONTENTS
Page
(III)
Cases—Continued
IV
Page
Ashwander v. TV A, 297 U.S. 288 ............................
Bantam Book, Inc. V. Sullivan, 372 U.S. 5 8 ...........
Bates V. State Bar of Arizona, 433 U.S. 350 ...........
Bridges V. California, 314 U.S. 252 ..........................
Brotherhood of R.R. Trainmen V. Fa. State Bar,
377 U.S. 1 ____________________ .................... .
Carey V. Brown, No. 79-703 (June 20, 1980) .........
Carlise v. LTV Electrosystems, Inc., 54 F.R.D.
237, appeal dismissed, No. 72-1605 (5th Cir.
June 23, 1972) ............... ............................. ....... 15,
CBS, Inc. V. Young, 522 F.2d 234 _______ ______
Chicago Council of Lawyers v. Bauer, 522 F,2d 242,
cert, denied, 427 U.S. 912 ...................................... 22,
Chrapliwy V. Uniroyal Inc., 71 F.R.D. 461 .... .......
Coles v. Marsh, 560 F.2d 186, cert, denied, 434 U.S.
985 ...................................... ......._____ ________ 11,12,
Consolidated Edison Co. V. Public Service Commis
sion, No. 79-134 (June 20, 1980) .......... .............
Cox V. Allied Chemical Corp., 538 F.2d 1094, cert.
denied, 434 U.S. 1051 ...... .....................................
Cypress v. Newport News General & Nonsectarian
Hospital Ass’n, 375 F.2d 648 ...... .........................
Dayton Board of Education V. Brinkman, 433 U.S.
406 .................. ................................................ ........
Deposit Guaranty National Bank v. Roper, 445
U.S. 326 ______________________ __ _______.11,13,
Eisen V. Carlisle & Jacquelin, 417 U.S. 156 ............
First National Bank v. Bellotti, 435 U.S. 765__ 26, 28,
Flaska V. Little River Marine Constr. Co., 389 F.2d
885, cert, denied, 392 U.S. 928 __________ ____
Franks v. Bowman Transp. Co., 424 U.S. 747___
General Motors Corp. Engine Interchange Litiga
tion, In re, 594 F.2d 1106, cert, denied, 444 U.S.
870 ___________________ _____________ _______ 19,
General Telephone Co. of the Northwest, Inc. v.
EEOC, 446 U.S. 318 ________ ____ __________
Goldfarb V. Virginia State Bar, 421 U.S. 773. . ..
Gore V. Turner, 563 F.2d 1 59 ....................................
Grayned V. City of Rockford, 408 U.S. 1 0 4 ...........
Halkin, In re, 598 F.2d 176 .................................. 15, 22,
11
25
15
28
26
31
32
22
29
19
16
21
19
10
16
15
13
31
32
10
22
19
22
10
26
23
Halverson V. Convenient Food Mart, Inc., 458 F.2d
927 ___ 11,31
Hamer V. Campbell, 358 F.2d 215, cert, denied,
385 U.S. 851 _____ 10
Henry V. First National Bank of Clarksdale, 595
F.2d 291, cert, denied, 444 U.S. 1074 .... ............. 16
Hirschkop V. Snead, 594 F.2d 356 ............................ 22, 30
IBM V. Edelstein, 526 F,2d 37 _____ _____ ______ 32
International Society for Kirshna Consciousness
V. Eaves, 601 F.2d 809 ................ ......................... 26
Korn V. Franchard Corp., 1971 Sec. L, Rep.
u 92,845, rev’d, 456 F.2d 1206 ....... ............... ....... 15, 32
Landmark Communications, Inc. v. Virginia, 435
U.S. 829 ______________________________ ____ 22
Linmark Associates, Inc. v. Township of Willing-
boro, 431 U.S. 85 ___________________________ 30
McDonald V. United A ir Lines, Inc., 587 F.2d 357,
cert, denied, 442 U.S. 934 ____ _____ ________ 10
NAACP V. Button, 371 U.S. 415 .... .......................1, 15, 29
Near v. Minnesota, 283 U.S. 697 .............................. 22
Nebraska Press A ss’n v. Stuart, 427 U.S. 539....... 23, 24
Newman V. Piggie Park Enterprises, Inc., 390 U.S.
400 ....... ............... ............ ............................... .......... 1, 9
New York Times v. United States, 403 U.S. 713.... 25, 26
Northern Acceptance Trust 1065 v. Amfac, Inc.,
51 F.R.D. 487 ......................... ............... .................. 15
Nissan Motor Corp. Antitrust Litigation, In re,
552 F.2d 1088 .................................................. ....... 13
Ohio v. Richter Concrete Corp., 69 F.R.D. 604..... 15
Ohralik V. Ohio State Bar A ss’n, 436 U.S. 447....... 18, 22
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340.. 13, 16
Organization for a Better Austin V. Keefe, 402
U.S. 4 1 5 ........... ................................... ..................... 23
Philadelphia v. Morton Salt Co., 385 F.2d 122, cert.
denied, 390 U.S. 995 ........................................... 13
Pittman V. E.I. duPont deNemours & Co., Inc.,
552 F.2d 149 ____ _______ _______ ____________ 10
Police Dep’t of Chicago V. Mosley, 408 U.S. 92....... 31
Primus, In re, 436 U.S. 412 __________________ 1, 27
Richmond Newspapers Inc. V. Virginia, No. 79-
243 (July 2, 1980)
V
Cases—Continued Page
30
Roadway Express, Inc. V. Piper, No. 79-701 (June
23, 1980) .................................................................... 12, 21
Rodgers V. United States Steel Corp., 508 F.2d 152,
cert, denied, 423 U.S. 832 ................................. .16, 23, 30
Rodgers V. United States Steel Corp., 70 F.R.D.
639 ____ __ ______ ______________ __________ 19
Rothman V. Gould, 52 F.R.D. 494 ............................ 15
Sargeant V. Sharp, 579 F.2d 645 .................. ............ 16
Shelton V. Tucker, 364 U.S. 479 ........................... . 26
Sheppard V. Maxwell, 384 U.S. 333 .......................... 21
Smith V. Daily Mail Publishing Co., 443 U.S. 97.... 26
Southeastern Promotions, Ltd. V. Conrad, 420 U.S.
546 .......................................................... ........ 23, 25, 32
Taub V. Glickman, 14 Fed. Rules Serv. 2d 847....... 32
Trafficante v. Metropolitan Life Ins. Co., 409 U.S.
205 ................................................... ......................... 1
United Mine Workers V. Illinois Bar Ass’n, 389
U.S. 217 ........... ........................................................ 26
United States v. Allegheney-Ludlum Industries,
Inc., 517 F.2d 826, cert, denied, 425 U.S. 944..... 19
United States V. City of Jackson, 519 F.2d 1147.... 19
United Transp. Union V. State Bar of Michigan,
401 U.S. 576 .... ............................................... ........ 26
Village of Schaumburg v. Citizens for a Better
Environment, 444 U.S. 620 .................................. 26, 29
Virginia Board of Pharmacy V. Virginia Citizens
Consumer Counsel, Inc., 425 U.S. 748 ..... ............ 30
Wainwright V. Kraftco Corp., 53 F.R.D. 7 8 ........... 15
Watkins V. Scott Paper Co., 530 F.2d 1159, cert.
denied, 429 U.S. 861 ........................... ................... 19
Winfield V. St. Joe Paper Co., 20 F.E.P. Cas. 1093.. 19
Wood v. Georgia, 370 U.S. 375 ....... ....................22, 27, 28
Yaffe V. Detroit Steel Corp., 50 F.R.D. 481 ........... 15
Zarate V. Younglove, 86 F.R.D. 80 .......................... 29, 31
Constitution, statutes and rules:
United States Constitution:
8,11, 24, 25, 29, 30, 31
31
VI
Cases— Continued Page
................ ........ . 1
First Amendment..........
Fifth Amendment .... .
Thirteenth Amendment
VII
Constitution, statutes and rules—Continued Page
Fourteenth Amendment ..................................... 1
Fifteenth Amendment ......................................... 1
Civil Rights Act of 1964, 42 U.S.C. 2000 et seq....... 1, 9
Title II, 42 U.S.C. 2000a et seq. ._.... ................ 1
Title III, 42 U.S.C. 2000b et seq________ ___ 1
Title IV, 42 U.S.C. 2000c et seq...... ............. 1
Title VI, 42 U.S.C. 2000d et seq__ __________ 1, 9
Title VII, 42 U.S.C. 2000e et seq. ..............1, 2, 3, 9,10
42 U.S.C. 2000e-5(b) ............ 3
42 U.S.C. 2000e-5 (f) ______ 3
Title VIII, 42 U.S.C. 3601 et seq... .................. . 1
Voting Rights Act of 1965, 42 U.S.C. 1971 et seq... 1
42 U.S.C. 1981 .............................. ............. .......... ....... 2
Fed. R. Civ. P. 2 3 _________ __ ____ . ..3, 8 ,10,11,13,17
Rule 23(b) (2) ______________ __________10,29,31
Rule 23(b) (3) ............................................ ........ 22,29
Rule 23(b) (3), and (4) ........ ............... .......... 6
Rule 23(d) ............................ ............3, 8,12, 13, 16, 21
Rule 23(d) (3) _________________ 13
Rule 26(c) __________________ __ ____ ____ 15,32
Fed. R. Civ. P. 52(a) .................................................. 15
Miscellaneous:
ABA Code of Professional Responsibility (1978).. 18
Manual for Complex Litigation, Pt. I (1977 ed.).... 6,12,
15,17,26
Notes of Advisory Comm, on Rules, 1966 Amend
ments to Fed. R. Civ., P. 23 ...... ............ ...........10, 12-13
7A C. Wright & A. Miller, Federal Practice and
Procedure (1972) .................................................. 10, 13
INTEREST OF THE UNITED STATES AND THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
The Attorney General and the Equal Employment Op
portunity Commission have enforcement responsibility
for Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq., which prohibits, inter alia, racial discrimi
nation in employment. The Attorney General also has
enforcement responsibility for a variety of other federal
civil rights laws, including those requiring nondiscrimi
nation in voting (42 U.S.C. 1971 et seq.). public accom
modations (42 U.S.C. 2000a et seq.), public facilities
(42 U.S.C. 2000b et seq.), public education (42 U.S.C.
2000c et seq.), federally assisted programs (42 U.S.C.
20Q0d et seq.), and housing (42 U.S.C. 3601 et seq.).
Because the executive branch has limited resources, pri
vate court actions are an essential means of effectuating
the national policy embodied in these statutes and in the
Thirteenth, Fourteenth and Fifteenth Amendments to the
Constitution. Alexander v. Gardner-Denver Co., 415 U.S.
36, 45 (1974) ; Trafficante v. Metropolitan Life Ins.
Co., 409 U.S. 205, 209 (1972). Under Title VII in
particular, employees who, with the assistance of private
or “public interest” counsel, prosecute class actions to
eradicate unlawful employment discrimination are ad
vancing a national policy of “the highest priority.” New
man v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-
402 (1968). This Court has recognized the role played
by the legal staffs of non-profit civil rights organizations
in achieving this end. In re Primus, 436 U.S. 412
(1978) ; NAACP V. Button, 371 U.S. 415 (1963).
The United States has an additional interest in this
case because it involves the right of individual Title VII
claimants to reject the terms of a settlement negotiated
between their employer and the federal government and
to pursue instead a private right of action in federal
court. While the United States recognizes the strong fed
eral policy favoring voluntary settlement of employment
(1)
2
discrimination claims, it also has an interest in ensuring
that the beneficiaries of government-negotiated settle
ments are not deprived of an opportunity to make an
informed choice between accepting the benefits of settle
ment and privately litigating their claims.
STATEMENT
1. This class action was filed on May 18, 1976, by six
present and former employees (respondents herein) of
Gulf Oil Company, who seek to represent a class com
posed of all present and past black employees and all un
successful black applicants at Gulfs plant in Port Arthur,
Texas. The complaint alleges that Gulf Oil engaged in
systematic and continuing employment discrimination
against blacks in violation of Title VII of the Civil
Rights Act of 1964 and 42 U.S.C. 1981, and requests
extensive declaratory, injunctive and monetary relief
(J.A. 11-20).1 Plaintiffs are represented by staff attor
neys of the NAACP Legal Defense Fund and local coun
sel in association with the Legal Defense Fund (J.A. 81
111- 120) .
At issue in this case is an order entered by the district
court shortly after the complaint was filed and prior to
certification of the proposed class, prohibiting the plain
tiffs and their attorneys from communicating with pro
spective class members without prior approval from the
court (J.A. 124-127). This restriction on communica
tions was entered without findings of facts and with no
showing of actual or threatened misconduct by plaintiffs
or their attorneys (see J.A. 46-79, 92-104, 124-127).
Six and one-half months later, the district court
granted summary judgment to the defendants (petition
ers in this Court) on the ground that the plaintiffs’
claims were barred by the statute of limitations and the
doctrine of laches (J.A. 170). On appeal, a three-judge
panel reversed the latter rulings and, with one judge
dissenting, upheld the order restricting communications
1“J.A.” refers to the Joint Appendix filed with petitioners’
brief.
3
with potential class members as a permissible and consti
tutional exercise of the district court’s authority to con
trol class actions under Fed. R. Civ. P. 23(d). On rehear
ing en banc, the court of appeals adopted the panel’s
opinion on the statute of limitations and laches issues
and, by a vote of twenty-one to one, invalidated the
“gag” order (J.A. 277). Thirteen of the judges held
that the order placed an unconstitutional prior restraint
on speech and, in so doing, violated Rule 23 as well (J.A.
231-268). Eight judges declined to reach the constitu
tional question (J.A. 275, 276), concluding that the order
violated Rule 23 because it was issued in the absence of
“ ‘a factual showing * * * that unsupervised communi
cations between counsel and named plaintiffs on the one
hand and potential class members on the other have
materialized into actual abuses of the class action device
or that abuses are imminently threatened’ ” (J.A. 273).
2. On April 14, 1976, more than one month before this
suit was filed, Gulf Oil Co., the EEOC and the United
States Department of the Interior entered into a concili
ation agreement in settlement of a Commissioner’s
charge12 alleging widespread racial discrimination by
Gulf against black employees at its Port Arthur plant
(J.A. 26-39). Under the agreement, Gulf undertook to
cease allegedly discriminatory practices, to establish an af
firmative action program with hiring and promotion goals,
and to offer back pay to alleged victims of past discrimi
nation, ranging from $2.81 to $5.62 for each month of
service (J.A. 26-42). Each person identified as an “af
fected class member” under the agreement was to receive
a letter, signed jointly by Gulf and the EEOC, explaining
the back pay offer and instructing those who wished to
accept it to sign a waiver within 30 days of receipt re
leasing Gulf from “any and all claims against [it] as a 2
2 Under Title VII, a Commissioner of the EEOC may file a
charge of employment discrimination against an employer without
joining individual employees. 42 U.S.C. 2000e-5(b). The EEOC
is then authorized to investigate the Commissioner’s charge and to
attempt to conciliate it with the employer prior to filing suit. 42
U.S.C. 2000e-5 (b), 2000e-5 (f).
4
result of events arising from its employment practices
occurring on or before the date of release, or which might
arise as the result of the future affects of past or pres
ent employment practices” (J.A. 31). Gulf agreed to
mail each employee a back pay check upon receiving the
signed release {ibid.).
Pursuant to the conciliation agreement, on May 1,
1976, Gulf sent letters offering back pay and soliciting
releases to 614 present and former black employees and
29 female employees at the Port Arthur plant (J.A. 22-23,
128). A sample letter is attached to this brief as an Ap
pendix.'3 The letter did not mention the affirmative
action goals or any of the provisions of the conciliation
agreement other than the back pay offer. Although it
stated that the amount of the offer “was figured ac
cording to your plant seniority date,” the letter did not
otherwise explain the basis for the offer or how the
award was computed. “Because this offer is personal in
nature,” Gulf urged the offerees “not [to] discuss it with
others,” and promised that “Gulf will likewise respect
your complete privacy by not disclosing the amount of
fered you to other employees or annuitants” (Appendix,
infra).
The class action complaint in this case was filed ap
proximately three weeks later, on May 18, 1976 (J.A. 11).
On May 27, 1976, before answering the complaint and
before a class was certified, Gulf filed a motion for an
order prohibiting communications between the parties or
their counsel and actual or potential class members (J.A.
21). In that motion, Gulf asserted that it had received
reports that plaintiffs’ attorneys met on May 22 in Port
Arthur with their clients and potential class members
and that during the course of the meeting a Legal De
fense Fund attorney advised the employees not to accept
Gulf’s back pay offer under the conciliation agreement
3 Although this letter was not formally made a part of the
record on appeal, its substance' was beforei both the district court
(see J.A. 128) and the court of appeals (Brief of United States
as Amicus Curiae on Eehearing En Banc, Exhibit 1).
5
because they could recover twice as much in the suit just
filed (J.A. 23-24). Gulf further represented to the court
that as of that moment, approximately 452 of the 643
employees eligible for back pay had accepted the offer
and executed general releases (J.A. 23).
Despite plaintiffs attorneys’ denial of Gulf’s unsworn
allegations, a temporary restraining order was entered
the following day prohibiting, without exception, all com
munications concerning the case by parties or their coun
sel with potential class members (J.A. 44). The order
was not accompanied, or followed, by findings of fact or
conclusions of law (J.A. 44-45).
Eleven days later, Gulf filed a request to modify the
temporary restraining order so that it could resume mak
ing back pay offers pursuant to the conciliation agree
ment (J.A. 46). In an accompanying brief, Gulf as
serted that the same Legal Defense Fund attorney whose
alleged conduct it earlier had assailed also recommended
at the May 22 meeting that employees who had already
signed releases return their back pay checks to Gulf
(J.A. 47). In further support of the request, Gulf filed
an affidavit signed by an EEOC employee stating that
the issues raised in the lawsuit were “almost identical”
to those resolved by the conciliation agreement (J.A. 72)
and that the lawsuit sought “the same kind of relief”
(J.A. 74). Gulf did not, however, then or later, substan
tiate its allegations against opposing counsel by sworn
affidavits, testimony, or other means.
In response, the plaintiffs’ attorneys filed affidavits
specifically denying Gulf’s charges of misconduct4 * and
asserting that communication with members of the pro
posed class was necessary to investigate and prepare the
case and to inform affected employees of their statutory
4 Two of the attorneys for plaintiffs admitted attending the May
22 meeting at the invitation of their clients and answering Ques
tions from potential class members concerning the pending suit
and the conciliation agreement (J.A. 115-116, 118). They denied
advising potential class members to reject the settlement offer or
representing that potential class members could recover twice as
much back pay by proceeding with the suit (J.A. 116, 118).
6
rights (J.A. 111-120). Such communication, they as
serted, “is of crucial importance at this time because of
the offers being tendered to class members under the
Conciliation Agreement entered into between the EEOC
and Gulf Oil Company” (J.A. 114). Counsel also stated
that they had not received and did not expect to receive
compensation from the named plaintiffs or potential class
members for their services (J.A. 113, 119). In an ac
companying brief, plaintiffs claimed that the relief
provided under the conciliation agreement was inade
quate because the goals were too low, there was no firm
commitment to timetables, and there was no provision
for relief from unlawful testing (J.A. 108-109). In addi
tion, plaintiffs noted that the back pay notices did not
explain the types and extent of relief in the agreement
or the method by which the back pay award was com
puted (J.A. 109). Based on all of the above, the plain
tiffs challenged the constitutionality of the temporary re
straining order and the district court’s authority under
Rule 23 to issue it (J.A. 83-91,106-110).
3. Without making findings of fact, the district court
on June 22 entered the modified order now before this
Court (J.A. 124-127). That order, which was explicitly
modeled on an order contained in the Manual for Complex
Litigation, Pt. I, § 1.41 (1977 ed.) (hereinafter “Man
ual”),6 generally forbade all parties and their attorneys
from communicating with potential class members con
cerning the lawsuit without obtaining prior approval of
the proposed communication from the court (J.A. 124).
“The communications forbidden by th[e] order include,
but are not limited to” (1) solicitation of legal represen
tation, (2) solicitation of fees and expenses, (3) solicita
tion by defendants of “opt out” requests under Rule
23(b) (3), and (4) “communications * * * which may
tend to misrepresent the status, purposes and effects of
the class action, and of any actual or potential Court or
ders therein which may create impressions tending, with
out cause, to reflect adversely on any party, any counsel,
6 This section of the Manual is presently undergoing revision.
7
this Court, or the administration of justice” (J.A. 125).
The order set forth several exceptions to these prohibi
tions, including communications between attorney and
client, communications between attorney and prospective
client when initiated by the prospective client, and com
munications in the “regular course of business” (ibid.).
The order also excepted communications to which “any
party or counsel for a party asserts a constitutional
right,” provided that within five days of any such com
munication the party or attorney files with the court
a written copy or summary of it (ibid,.).
Noting that “the private settlements of charges that
the employer has violated Title VII is to be encouraged,”
the order also permitted Gulf to continue soliciting re
ceipts and releases from employees covered by the con
ciliation agreement and extended the, time for acceptance
of the offer for an additional 45 days (J.A. 125-126). In
addition, it instructed the clerk of the court to send a
notice to the covered employees, the contents of which
were set forth in the court’s order, briefly describing the
pending case and their choice of accepting Gulf’s back
pay offer or being considered at a later date for inclu
sion in the potential class (J.A. 126, 128-129).
On July 6, 1976, the plaintiffs moved for permission
to distribute a notice to members of the putative class
(J.A. 130), and asserted that the communication was
constitutionally protected. The plaintiffs further as
serted that both Gulf’s May 1976 back pay offer and the
notice sent by the clerk of the court failed to explain
adequately the terms of the conciliation agreement (J.A.
131). The proposed notice alerted black employees to the
existence of a lawsuit and urged them to “talk to a law
yer” before signing the release (J.A. 132-133). On Aug
ust 10, two days after the 45 days for accepting Gulf’s
offer had expired (J.A. 157, 236), the court denied re
spondents’ motion in a one-sentence order (J.A. 157).
Respondents’ appeal, consolidated with an appeal from
the district court’s later order granting summary judg
ment followed (see pages 2-3, supra).
SUMMARY OF ARGUMENT
8
At issue in this employment discrimination case is the
validity of an order, issued by the district court shortly
after the class action complaint was filed and prior to
class certification, imposing broad restrictions on commu
nications initiated by the named plaintiffs (respondents
herein) or their attorneys (the NAACP Legal Defense
Fund) with potential class members—present and past
black employees at Gulf’s plant in Port Arthur, Texas
and unsuccessful black applicants. The order impaired
respondents’ ability to investigate their claims and to
prepare for trial. In addition, it prevented respondents
and their attorneys from providing information about
the lawsuit to potential class members at a time when
Gulf was tendering back pay to and seeking releases
from them in connection with an independently-negoti
ated conciliation agreement believed by respondents to be
inadequate.
Petitioners have failed to demonstrate that the order
was an “appropriate” exercise of the district court’s
Rule 28(d) discretion to control the conduct of class
actions. As petitioners concede, orders issued under this
authority are subject to review for abuse of discretion.
They also must be consistent with the purposes under
lying Rule 28 and warranted by the particular facts of
the case. The moving party thus must demonstrate by
reference to specific facts that unsupervised communica
tions by parties and their counsel with potential class
members have materialized into actual abuses of the
class action device or that abuses are imminently
threatened.
The order here did not meet this standard; it was
imposed without findings of fact and without any show
ing of actual or threatened abuse. Also, on this record
it is at least arguable that the order worked against the
interests of the absent potential class members.
Moreover, the order fails to satisfy constitutional
standards under the First Amendment. It places a sub
stantial burden on the First Amendment rights of re
9
spondents and their attorneys to speak freely concerning
the case and to associate for purposes of eliminating ra
cial discrimination through litigation. Although the dis
trict court has a legitimate interest in protecting class
members, preventing misrepresentation, and furthering
the proper administration of justice in class action cases,
those interests do not justify the particular means em
ployed here—a blanket restriction on speech. As we have
noted, the record contains no evidence, and the district
court made no findings, that respondents or their attor
neys had engaged or were likely to engage in improper or
unethical conduct or that they posed a threat to the
administration of justice. Nor was the order precisely
tailored to restrict only , those communications determined
to pose a substantial threat to the legitimate interests
purportedly being served. In any event, there are a num
ber of readily available alternative means of serving
those interests that do not involve such broad restrictions
on speech.
ARGUMENT
THE DISTRICT COURT’S ORDER, WHICH IMPOSES
BROAD RESTRICTIONS ON COMMUNICATIONS
BETWEEN THE PARTIES OR THEIR ATTORNEYS
AND POTENTIAL CLASS MEMBERS, IS NOT AN
APPROPRIATE EXERCISE OF THE COURT’S POW
ER TO GOVERN CLASS ACTION PRACTICE AND
FAILS TO SATISFY FIRST AMENDMENT STAND
ARDS
The private right of action under Title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) is an
essential means of enforcing that statute’s guarantees
against racial discrimination in employment. Alexander
v. Gardner-Denver Co., 415 U.S. 36, 45 (1974). As this
Court has said, the private Title VII plaintiff acts “not
for himself alone but as a ‘private attorney general’, vin
dicating a policy that Congress considered of the highest
priority.” Newman v. Piggie Park Enterprises, Inc., 390
U.S. 400, 401-402 (1968).
Recognizing this strong national policy, the Court con
sistently has upheld the right of private parties to seek
10
complete relief in federal court not only for themselves,
but for all persons similarly situated as well. See, e.g.,
Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) ;
Albemarle Paper Co. v. Moodij, 422 U.S. 405 (1975). As
a practical matter, the exercise of that right hinges on
the use of the class action device. Perhaps recognizing
as much, the drafters of the 1966 amendments to Fed. R.
Civ. P. 23 specifically contemplated that Subsection
(b) (2) of the Rule would be particularly appropriate for
litigating civil rights cases “where a party is charged
with discriminating unlawfully against a class * *
Notes of Advisory Comm, on Rules, 1966 Amendments
to Fed. R. Civ. P. 23. And, as its drafters predicted,
Rule 23(b) (2) repeatedly has been used for this pur
pose. See, e.g., Franks v. Boivman Transp. Co., supra
(employment discrimination) ; McDonald v. United A ir
Lines, Inc., 587 F.2d 357 (7th Cir. 1978) (same), cert,
denied, 442 U.S. 934 (1979) ; Gore v. Turner, 563 F.2d
159 (5th Cir. 1977) (housing); Hamer v. Campbell, 358
F.2d 215 (5th Cir.), cert, denied, 385 U.S. 851 (1966)
(voting rights) ; Cypress v. N ewport N ews General &
Nonsectarian Hospital Ass’n, 375 F.2d 648 (4th Cir.
1967 (hospital services). See generally 7A C. Wright &
A. Miller, Federal Practice and Procedure § 1776 (1972).
The order at issue in this case places a substantial
burden on the exercise of the right under Title VII to
litigate both individual and class claims of employment
discrimination. Access to potential class members is nec
essary to develop the facts of a case and to prepare wit
nesses for trial. In addition, discovery from potential
class members is frequently necessary to establish that
the class is an appropriate one for certification. See, e.g.,
Pittm an v. E.I. duPont de Nemours & Co., Inc., 552 F.2d
149 (5th Cir. 1977). By severely restricting the circum
stances under which respondents and their attorneys can
communicate with potential class members, the order
thus impedes the development, presentation and deter
mination of facts relevant to the Title VII claims at
issue. The order also lessens the ability of respondents
and their attorneys to encourage other Gulf employees
11
to participate in the suit. Contrary to petitioners’ sug
gestion that such activity is an “abuse[]” of Rule 23 (Pet.
Br. 22-23), we believe that it effectuates the primary
policy underlying the Rule of resolving similar claims in
a single lawsuit. American Pipe & Constr. Co. v.
Utah, 414 U.S. 538, 550 (1974) :6 Indeed, Rule 23 has
been interpreted as authorizing (rather than forbidding)
individuals to encourage common participation in a Title
VII suit. Coles v. Marsh, 560 F.2d 186 (3d Cir.), cert,
denied, 434 U.S. 985 (1977) ; Halverson v. Convenient
Food Mart, Inc., 458 F.2d 927 (7th Cir. 1972).
In light of these considerations, it is our view that the
district court’s order was not an approriate exercise of
the court’s power under Rule 23 to govern class action
practice and, indeed, exceeded established constitutional
limitations.
A. The District Court’s Order is Not an “Appropriate”
One under Rule 23(d) Absent a Showing of Actual
or Threatened Misconduct by Respondents or Their
Attorneys
We recognize that the majority below premised its
decision on the First Amendment and that the sole ques
tion as to which this Court granted certiorari involves
the constitutionality vel non of the district court’s order.
As we explain below (see Part B, infra), in our view
that order imposes an unconstitutional restraint on
speech. However, in light of the existence of a dispositive
non-constitutional ground for affirmance (see, e.g., Ash-
wander v. TV A, 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring)), we first address the order’s invalidity un
der Fed. R. Civ. P. 23.
6 As the Court observed in Deposit Guaranty National Bank v.
Roper, 445 U.S. 326, 339 (1980) “ [t]he aggregation of individual
claims in the context of a classwide suit is an evolutionary response
to the existence of injuries unremedied by thei regulatory action of
government. Where it is not economically feasible to obtain relief
within the traditional framework of a multiplicity of small in
dividual suits for damages, aggrieved persons may be without any
effective redress unless they may employ the class-action device.”
12
Petitioners contend that the district court’s authority'7
to issue an order restricting communications flows from
Rule 23(d), which provides:
In the conduct of actions to which this rule ap
plies, the court may make appropriate orders: (1)
determining the course of proceedings or prescrib
ing measures to prevent undue repetition or compli
cation in the presentation of evidence or argument;
(2) requiring, for the protection of the members of
the class or otherwise for the fair conduct of the
action, that notice be given * * * of any step in the
action, or of the proposed extent of the judgment,
or of the opportunity of members to signify whether
they consider the representation fair and adequate,
to intervene and present claims or defenses, or other
wise to come into the action; (3) imposing condi
tions on the representative parties or on interveners;
(4) requiring that the pleadings be amended to elim
inate therefrom allegations as to representation of
absent persons * * *; (5) dealing with similar pro
cedural matters. * * *.
As its drafters observed, Subsection (d) is designed to
facilitate “the fair and efficient conduct of” class ac
tions.8 Notes of the Advisory Comm., 1966 Amendment to
7 We note that an additional source of authority is provided by
Rule 83, which permits district courts to adopt local rules consistent
with the federal rules and, where no rule applies, to regulate prac
tice in any manner consistent with the federal rules. See Coles
V. Marsh, 560 F.2d 186 (3d Cir.), cert, denied, 434 U.S. 985 (1977).
The district court also has inherent power to control the conduct
of litigants and attorneys who appear before it. Roadway Express,
Inc. v. Piper, No. 79-701 (June 23, 1980). The exercise of these
powers, however, must be consistent with the purposes underlying
Rule 23 and is subject to reversal on appeal for abuse of discretion.
Coles v. Marsh, supra. Of course, the Manual merely provides guide
lines for use in complex and multi-district federal cases and cannot
itself confer additional power on the district court.
8 Among the orders commonly issued under Rule 23(d) are or
ders consolidating cases, designating general counsel, creating sub
classes, establishing timetables for discovery and trial, and fixing
cut-off dates for intervention. See, e.g., In re Air Crash Disaster
Rule 23. To that end, Subdivision (d) (3) “reflects the
possibility of conditioning the maintenance of a class
action, e.g., on the strengthening of the representation,
* * * and recognizes that the imposition of conditions on
intervening class members] may be required for the
proper and efficient conduct of the action.” Notes of the
Advisory Comm., supra.
Thus the district court’s authority under Rule 23(d)
is broad and doubtless includes the power to protect absent
or potential class members. However, that authority is not
unlimited. As petitioners concede (Pet. Rr. 16, 21 n.15),
orders issued under Rule 23(d) are subject to appellate
review for abuse of discretion. See, e.g., Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340 (1978) (reversing
an order requiring defendant to bear costs of identifying
members of plaintiff class). Moreover, such orders may
not impose unwarranted substantive conditions on the
maintenance of class action suits. Eisen v. Carlisle &
Jacquelin, 417 U.S. 156 (1974). To be “appropriate”
under Rule 23(d), orders must be consistent with the
purposes underlying Rule 23 and justified by the partic
ular facts of the case.
In determining whether an order is “appropriate,” the
district court should of course consider the interests of
absent class members. See In re Nissan Motor Corp.
Antitrust Litigation, 552 F.2d 1088, 1096 (5th Cir. 1977)
(appellate review of Rule 23(d) orders is necessary “to
assure that the rights of absentee class members are not
inundated in the wake of a district court’s brisk super
vision”). But the interests of absent class members is
only one of a cluster of interests that must be weighed
by the court in controlling the conduct of class actions.
In Deposit Guaranty National Bank v. Roper, supra,
445 U.S. at 331, this Court recently identified at least
four such interests:
at Fla. Everglades on Dec. 29, 1972, 549 F.2d 1006, 1012 n.8
(5th Cir. 1977) (appointing lead counsel) ; City of Philadelphia
V. Morton Salt Co., 385 F.2d 122 (3d Cir. 1967), cert, denied,
390 U.S. 995 (1968) (establishing cut-off date for closing of class) ;
see generally 7A C. Wright & A. Miller, Federal Practice and Pro
cedure §§ 1791-1796 (1972).
13
14
First is the interest of the named plaintiffs: then-
personal stake in the substantive controversy and
their related right as litigants in a federal court to
employ in appropriate circumstances the procedural
device of a Rule 23 class action to pursue their indi
vidual claims. A separate consideration, distinct
from their private interests, is the responsibility of
named plaintiffs to represent the collective interests
of the putative class. Two other interests are im
plicated: the rights of putative class members as
potential intervenors, and the responsibilities of a
district court to protect both the absent class and the
integrity of the judicial process by monitoring the
actions of the parties before it.
Because the nature and strength of these interests will
vary from case to case, the district court must make a
case-by-case determination of what is “appropriate” for
the “fair and efficient conduct of the action.”
As we have shown (pages 10-11, supra), an order re
stricting communications with potential class members
impairs the named plaintiffs’ ability to discover and liti
gate individual and class claims and, more broadly, to
represent the interests of the class. In addition, such an
order may well harm potential class members directly by
restricting their opportunity to obtain information about
their legal rights and remedies and to pursue, if they
choose, a common claim. Given these major drawbacks,
the mere generalized potential for abuse of the class
action mechanism is not sufficient, in our view, to justify
as appropriate an order broadly restricting communica
tions with the putative class. As the court of appeals
implicitly recognized (J.A. 262-263), the class action
device is not so inherently conducive to misuse as to jus
tify an assumption in every case that misconduct is
likely to occur. Such an assumption is all the more un
warranted where, as here, respondents are represented
by a public interest law firm that has “a corporate repu
tation for expertness in presenting and arguing the dif
ficult questions of law that frequently arise in civil rights
litigation,” and is engaged in “a different matter from
15
the use of the * * * legal process for purely private gain.”
NAACP v. Button, supra, 371 U.S. at 422, 443. The
Manual itself recognizes that abuses of the class action
device are exceptions rather than the rule (Manual, supra,
§ 1.41 at 31).9
A request for an order restricting communications with
potential class members is not essentially different from
a request for a protective order under Fed. R. Civ. P.
26(c) or for a preliminary injunction under Rule 52(a)
to achieve the same end. See In re Halkin, 598 F,2d 176
(D.C. Cir. 1979). Just as a protective order can be en-
9 As illustrations of “abuses” of the class action procedure, the
Manual cites seven cases, four of which involve conduct that would
not be prevented by the Manual’s proposed order. Ace Heating
and Plumbing Co. V. Crane Co., 453 F.2d 30 (3d Cir. 1971) (de
fendants negotiated settlement of class action with second set of
plaintiffs’ attorneys after first set declined offer) ; Yaffe v. Detroit
Steel Corp., 50 F.R.D. 481 (N.D. 111. 1970) (motion to withdraw
class allegations to effectuate individual settlement); Rothman
V. Gould, 52 F.R.D. 494 (S.D.N.Y. 1971) (same) ; Wainwright V.
Kraftco Corp., 53 F.E.D. 78 (N.D Ga. 1971) (joint motion to ap
prove settlement). Two of the remaining three cases involve con
duct bearing little resemblance to the activities here. Korn v.
Franchard Corp., 1971 Sec. L. Rep. |f 92,845 (S.D.N.Y. 1971),
rev’d, 456 F.2d 1206 (2d Cir. 1972) (under a pseudonym, class
attorney sought unauthorized discovery in unrelated case); North
ern Acceptance Trust 1065 V. Amfac, Inc., 51 F.R.D. 487, 491 (D.
Hawaii 1971) (defendants solicited affidavits from plaintiff class
denying that plaintiffs represented affiants). Only Carlisle v. LTV
Electrosystems, Inc., 54 F.R.D. 237 (N.D. Tex. 1972), appeal dis
missed, No. 72-1065 (5th Cir. June 23, 1972), involved solicitation
by a class member (who also served as class counsel) of others will
ing to have a class action initiated in their names. This case
predateis recent decisions invalidating traditional prohibitions on
lawyer advertising and solicitation (see, e.g., In re Primus, supra-,
Bates V. State Ba,r of Arizona, 433 U.S. 350 (1977)) and appar
ently involved solicitation for financial gain. Compare Ohio V.
Richter Concrete Corp., 69 F.R.D. 604, 606-607 (S.D. Ohm 1975).
Significantly, the Court’s reference in Deposit Guaranty National
Bank V. Roper, supra, 445 U.S. at 339, to the “potential for
misuse of the class action mechanism” concerned the financial in
centive that class actions offer to the private bar, and not the non
profit activities of organizations such as the Legal Defense Fund.
See note 12, infra.
16
tered only upon a finding of “good cause/’ In re Hal-
kin, supra, and a preliminary injunction requires,
inter alia, a factual showing that the need for the order
outweighs its disadvantages (see, e.g., Henry v. First
National Bank of Clarksdale, 595 F.2d 291 (5th Cir.
1979), cert, denied, 444 U.S. 1074 (1980)), so too an
order restricting communications under Rule 23(d)
should be premised on a finding that the need for it out
weighs the advantages of unrestrained, or less restrained,
communications. To meet its burden of proof, the moving
party should be required to make a particularized show
ing that unsupervised communications with potential
class members have materialized into actual abuses of
the class action device or that such abuses are immi
nently threatened (J.A. 273). In addition, “the district
court must find that the showing provides a satisfactory
basis for relief and that the relief sought would be con
sistent with the policies of Rule 23 giving explicit con
sideration to the narrowest possible relief which would
protect the respective parties.” Coles v. Marsh, supra,
560 F.2d at 189; Rodgers v. United States Steel Corp.,
508 F.2d 152 (3d Cir. 1975), cert, denied, 423 U.S. 832
(1975) ; see also In re Halkin, supra.
In issuing its order restricting communications in this
case, the district court made no factual findings.10 Rather
10 Since Rule 23(d) orders are reviewable (Oppenheimer Fund,
Inc. v. Sanders, supra), they must be based on findings of fact.
The reasons for this requirement were summarized by the First
Circuit in Sargeant v. Sharp, 579 F.2d 645, 647 (1978) (citations
omitted) :
[IJssuance of an order * * * without an adequate statement
of the reasons for the order does not meet minimum fairness
and regularity * * *. Nor does an order issued without a de
liberate articulation of its rationale, including some appraisal
of the factors underlying the court’s decision, allow for a
disciplined and informed review of the court’s discretion.
This Court has repeatedly emphasized that a district court, in
exercising its equitable powers, must articulate specific findings
in support of its conclusions. See, e.g., Dayton Board of Education
v. Brinkman, 433 U.S. 406, 419 (1977). The concurring judges in
the court of appeals correctly concluded that this principle applies
17
than weighing the competing interests that would be
benefited and burdened by such an order, the court simply
imposed a blanket rule in accordance with the Manual’s
recommendation that that be done in every class action.
Petitioners nevertheless contend that “the district court
acted only after compiling a complete record showing the
class action process was threatened by abuse” (Pet. Br.
22), and that the order was therefore appropriate under
Rule 23. As evidence of a threatened abuse, they cite two
affidavits in which respondents’ attorneys admitted attend
ing at respondents’ invitation a meeting of potential class
members shortly after suit was filed. The attorneys dis
cussed the issues in the case, answered questions from the
audience, and explained the administrative and legal prob
lems inherent in the litigation (J.A. 115-116, 118). Ap
parently implying that these activities amounted to im
proper solicitation, petitioners conclude: “Thus, the
plaintiffs created and their attorneys participated in the
type of activity which the Manual’s recommended order
was designed to control” (Pet. Br. 23) .u 11
“to any court order that is based on the court’s assessment of
conflicting evidence or policy considerations,” including orders un
der Rule 23(d) (J.A. 272). Accord, Coles v. Marsh, supra. The
district court’s failure to articulate findings of fact in support
of its order provides an additional basis for concluding that the
order was not an “appropriate” exercise of discretion under Rule
23(d).
11 Petitioners also represent as fact mere allegations made in their
district court briefs (Pet. Br. 23). In originally seeking an order
restricting communications, petitioners’ memorandum of law
stated: “it is reported to' Gulf that [a Legal Defense Fund at
torney] advised this group that they should mail back to Gulf the
checks they had received since he could recover at least double the
amount which was paid to them under the conciliation agreement
by prosecuting the present lawsuit” (J.A. 23-24). Petitioners made
similar unsworn allegations in a subsequently filed memorandum
(J.A. 47). The two Legal Defense Fund attorneys who were pres
ent at the meeting filed affidavits specifically denying these un
sworn charges (J.A. 115-116, 118), and petitioners never submitted
substantiating affidavits or testimony. At the “hearing” held
prior to entry of the order (see Pet. Br. 22 n.16), the district
court heard oral argument but did not receive evidence. Both the
18
We do not agree that providing information about the
lawsuit to potential class members and answering ques
tions concerning their rights somehow constitute “abuses”
that should be discouraged. To the contrary, in our view
such activity is constitutionally protected and, in addi
tion, is consistent with the purposes underlying Rule 23.
See pages 10-11, 14, supra, and pages 26-27, infra.™
Petitioners also argue that the order was appropriate
in this case because it was issued in the midst of an on
going conciliation process when potential class members
were particularly vulnerable to misrepresentations and
undue influence (Pet. Br. 22-26). However, even if the
underlying premise is true, and even if that circumstance
might justify a more narrowly drawn protective order
than was involved here,18 it is a consideration that must 12 13
three-judge panel of the court of appeals and the en banc court
correctly concluded that on this record the above charges were
entitled to no weight (J.A. 195, 241).
12 Under the Code of Professional Responsibility, the activity
involved here—attending a meeting at the invitation of named
plaintiffs, providing information to potential class members and
answering their questions.—does not constitute improper solicita
tion of representation, even when engaged in by private attorneys.
DR 2-104 (A) (2), (A )(5), ABA Code of Professional Responsi
bility (1978). Canon 2 in fact encourages members of the bar “to
facilitate the process of intelligent selection of lawyers and to
assist in making legal services fully available.” EC 2-1, supra.
Moreover, the Code’s limitations on solicitation specifically exempt
non-profit organizations such as the Legal Defense Fund. DR 2-
104(A) (3), supra. Also compare Ohralik v. Ohio State Bar Ass’n,
436 U.S. 447 (1978), with In re Primus, supra; NAACP v. Button,
supra. Since: respondents’ attorneys do not expect to receive com
pensation from respondents or from the potential class for their
services even on a contingent basis. (J.A. 113, 119), this case does
not involve solicitation of fees or expenses.
13 The cases cited by petitioners recommending court supervision
of individual settlement offers made while a class action is pend
ing were concerned with the possibility that the defendant, in
soliciting individual settlements with plaintiff class members,
would misrepresent the strength of the class claims and that as
a result “the class action vehicle would be eviscerated.” American
19
be balanced against the fact that individual victims of
employment discrimination have an absolute right under
Title VII to reject the terms of a conciliation agreement
or consent decree negotiated between the government and
their employer. See Alexander v. Gardner-Denver Co.,
supra; United States v. Allegheny-Ludlum Industries, Inc.,
517 F.2d 826, 848 n.26 (5th Cir. 1975), cert, denied, 425
U.S. 944 (1976). Indeed, private plaintiffs can proceed
to trial even after such a consent decree has been ap
proved by the court as fair, lawful and reasonable. Gen
eral Telephone Co. of the Northwest, Inc. v. EEOC, 446
U.S. 318, 333 (1980) ; United States v. City of Jackson,
519 F.2d 1147 (5th Cir. 1975). Moreover, releases given
by actual or potential class members in conjunction with
an offer of settlement are invalid unless they are the prod
uct of a knowing and voluntary waiver of the right to
litigate or seek further redress. Alexander v. Gardner-
Denver Co., supra, 415 U.S. at 52 n.15.14
Finance System, Inc. V. Harlow, 65 F.R.D. 572, 576 (D. Md. 1974);
see also In re General Motors Corp. Engine Interchange Litigation,
594 F.2d 1106, 1130-1140 (7th Cir.), cert, denied, 444 U.S. 870
(1979) ; Chrapliwy v. Uniroyal, Inc., 71 F.R.D. 461, 464 (N.D. Ind.
1976).
14 A waiver of remedial rights guaranteed by federal civil rights
laws “is not lightly to be inferred.” Watkins v. Scott Paper Co.,
530 F.2d 1159, 1172 (5th Cir.), cert, denied, 429 U.S. 861 (1976).
Before it may be concluded that an employee has elected to waive
the right to present a claim of discrimination in a judicial forum,
it must be shown that at the time of executing the release the
employee was given a full explanation of the consideration for the
waiver and that he or she fully understood the extent of the bar
gain. Cox v. Allied Chemical Corp., 538 F,2d 1094, 1098 n.5 (5th
Cir. 1976), cert, denied, 434 U.S. 1051 (1978). That explanation
must cover not only the monetary award and other benefits to be
received but also the remedial rights to be given up. Watkins v.
Scott Paper Co., supra. In addition, the employee must be given
“ample opportunity to reflect and seek advice” concerning the
choice. Rodgers V. United States Steel Corp., 70 F.R.D. 639, 647
(W.D. Pa. 1976) (on remand). Releases obtained in violation of
these requirements are subject to collateral attack. See, e.g., Win
field V. St. Joe Paper Co., 20 F.E.P. Cas. 1103 (N.D. Fla. 1979).
20
In this case, the potential members of the plaintiff class
were faced with a choice between accepting Gulf’s back
pay offer and being considered for inclusion in respond
ents’ class action. The broad order imposed here pre
vented respondents and their attorneys from providing
information about the suit to class members despite re
spondents’ contention that some of the issues addressed
by the suit—such as the validity of employment tests—
were not covered by the conciliation agreement and that
the benefits provided for in the agreement were inade
quate. Therefore, rather than protecting potential class
members, the district court’s order tended to deprive
them of their most likely source of information and legal
advice at the very time they were being required
to elect between alternative modes of redress. See Rod
gers v. United States Steel Corp., supra. As the court
of appeals correctly recognized, “ [t]he choice between the
lawsuit and accepting Gulf’s back pay offer and giving
a general release was for each black employee to make.
The court could not make it for him, nor should it have
freighted his choice with an across-the-board ban that
restricted his access to information and advice concerning
the choice” (J.A. 266) ,1IB 15 * *
15 Prior to the May 22 meeting attended by respondents’ counsel,
the only information potential class members received concerning
their options was Gulf’s letter offering back pay and soliciting
releases. This letter was insufficient to enable them to make an
informed choice between accepting Gulf’s back pay offer and pur
suing their private right of action. The letter did not include a
copy of either the conciliation agreement or the Commissioner’s
charge that triggered the settlement discussions. Nor did it de
scribe any provisions of the agreement, such as the affirmative ac
tion goals, other than the back pay offer. Its description of the
back pay offer failed to describe the formula used to compute the
amount of each employee’s monetary award, and did not even ex
plain the general basis for the award. Rather than encouraging
the employees to reflect on and seek advice concerning the offer,
the notice instructed the employees not to discuss the offer with
anyone. It urged employees to sign a general release and at the
same time informed them that they retained full rights to ad
ministrative and legal processes (see Appendix, infra,).
21
Thus, petitioners failed to show, and the district court
did not find, that either respondents or their counsel acted
inappropriately or that the specific circumstances of this
case justified an order broadly restricting communica
tions with the putative class. The order therefore was
not “appropriate” under Fed. R. Civ. P. 23 (d).
B. The District Court’s Order Imposes an Unconstitu
tional Restraint On Speech
1. We recognize that a district court, in furtherance
of the fair administration of justice, has broad power
to control the course of litigation and the conduct of
litigants and attorneys who appear before it (Roadway
Express, Inc. v. Piper, No. 79-701 (June 23, 1980)) and
to “take such steps by rule and regulation that will pro
tect their processes from prejudicial outside interferences”
(Sheppard v. Maxwell, 384 U.S. 333, 363 (1966). In
deed, in its day-to-day activities, a district court fre
quently restricts the speech and association of partici
pants in the proceedings, as well as the speech of ob
servers, to ensure that the proceedings are conducted
efficiently, with proper decorum and without outside in
fluence. While most such restrictions simply regulate the
time, place or manner of speech in the courtroom (cf.
Consolidated Edison Co. v. Public Service Commission,
No. 79-134 (June 20, 1980)), in appropriate circum
stances such restrictions may extend beyond in-court
speech to extrajudicial discussions of or publicity on pend
ing litigation. For example, a district court may prop
erly instruct the jury not to discuss the pending case
with non-jurors until a verdict had been reached,1'8 or may 18
18 In contrast to the order at issue here, such an instruction
meets First Amendment standards (see page 26, infra). It is
narrowly tailored to prohibit precisely those communications which
pose a danger of outside influence to the jury’s deliberations.
In addition, its meaning is clear and the compelling interest being
served—protecting the integrity of the trial process—is present
in every case.
22
prohibit counsel from disclosing matters revealed in cam
era.17 In appropriate settings, the dangers of solicitation
for private gain or of misrepresentation could justify a
narrowly tailored regulation of speech. Ohralik v. Ohio
State Bar Assn., 436 U.S. 447 (1978). And a court may
conclude that the danger of misrepresentation or over
reaching in a particular case justifies judicial examination
of an offer by the defendant to settle with individual mem
bers of the plaintiff class or, in Rule 23(b) (3) cases, of
attempts to solicit opt-out requests. In re General Motors
Corp. Engine Litigation, 594 F.2d 1106, 1139-1140 (7th
Cir. 1979). Nevertheless, court-imposed restrictions on
parties and attorneys are disfavored outside of these
narrow contexts 18 19 and must be carefully scrutinized to
ensure that they comply with constitutional requirements.
In the present case, the court of appeals correctly con
cluded that the order at issue operates as a classic prior
restraint on speech. Typically, a prior restraint places
specified communications under the personal censorship
of a judge or administrative authority. See, e.g., Near
v. Minnesota, 283 U.S. 697 (1931) ; In re Halkin, supra,
598 F.2d at 184 n.15; Chicago Council of Lawyers v.
Bauer, 522 F.2d 242, 278 (7th Cir. 1975), cert, denied,
427 U.S. 912 (1976).w Its purpose is to suppress un
17 Attorneys, of course, “have historically been ‘officers of the
courts.’ ” Goldfarb V. Virginia State Bar, 421 U.S. 773, 792
(1975).
18 In civil cases, where the competing interest of the defendant’s
Sixth Amendment right to a fair trial is not present, court orders
or statutes prohibiting comments on pending cases generally have
been struck down, both when directed toward the press (see, e.g.
Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) ;
^Wood v. Georgia, 370 U.S. 375 (1962)), and when imposed on
parties and their attorneys (see, e.g., In re Halkin, supra; Hirsch-
kop V. Snead, 594 F.2d 356 (4th Cir. 1979) (en banc) ; Chicago
Council of Lawyers V. Bauer, supra; CBS, Inc. v. Young, 522 F.2d
234 (6th Cir. 1975)).
19 A judicial restraint on speech generally carries with it a
greater certainty of punishment than a criminal statute or other
legislative prohibition on speech. “While a statute poses only a
23
desirable speech before it takes place. Southeastern Pro
motions, Ltd. v. Conrad, 420 U.S. 546, 558-559 (1975) ;
Organization for a Better Austin v. Keefe, 402 U.S. 415,
418-419 (1971). To avoid violating a directive imposing
such a restraint, the speaker must seek clearance in
advance and bears the burden of persuading the tribunal
that the speech is unobjectionable.* 20
The district court’s order in this Court was a pro
phylactic measure, the purpose of which was to suppress
speech before it took place rather than to punish past
misconduct. As the court of appeals observed, the order
had its intended effect (J.A. 248-249; footnote omitted) :
It silenced the named plaintiffs and their attorneys
during the period that Gulf’s conciliation offers were
outstanding and putative class members were con
sidering whether to accept. A named plaintiff, ques
tioned by the black employee working next to him
concerning the suit or the relative advantages of
conciliation award and suit, could not reply. The
order cut off dialogue despite the contentions of
‘mute, impersonal threat,’ a judicial order singles out particular
individuals, increasing both the likelihood of punishment if the
order is violated and the probability that protected speech will
be chilled regardless of the defenses which may ultimately be
available in subsequent proceedings.” In re Halkin, supra, 598
F.2d at 184 n.15; Rodgers V. United States Steel Corp., supra, 508
F.2d at 161.
20 In contempt proceedings for violating a prior restraint, the
penalty is imposed quickly and often is not accompanied by all of
the procedural safeguards associated with criminal proceedings.
As the Court stated in Nebraska Press Ass’n v. Stuart, 427 U.S.
539, 559 (1976) (footnotes omitted) :
A criminal penalty * * * is subject to the whole panoply of
protections afforded by deferring the impact of the judgment
until all avenues of appellate review have been exhausted.
Only after judgment has become final, correct or otherwise,
does the law’s sanction become fully operative'.
A prior restraint, by contrast and by definition, has an
immediate and irreversible sanction. If it can be said that
a threat of criminal or civil sanctions after publication “chills”
speech, prior restraint “freezes” it at least for the time.
24
plaintiffs’ counsel that some of the issues in the suit
were not covered by the conciliation agreement to
which plaintiffs and putative class members were not
parties and that the conciliation benefits to the puta
tive class were inadequate. It stopped investigation
and discovery at a time when it is critical, just after
suit has been filed.
Moreover, as petitioners concede (Pet. Br. 33 n.37), the
order was to be enforced through the court’s criminal
contempt power rather than through the criminal justice
system. And like prior restraints on public comment on
pending or anticipated trials (see, e.g., Nebraska Press
Ass’n v. Stuart, supra; CBS V. Young, 522 F.2d 234, 239
(6th Cir. 1975)), the order placed proposed communica
tions under the personal censorship of the district court.
Petitioners construe the order’s express exception for
communications to which a party or counsel “asserts a
constitutional right” (J.A. 125) to permit the constitu
tionality of a communication, or the communicator’s good
faith belief in its constitutionality, to be asserted as a
defense in contempt proceedings, and urge that so long
as the five-day filing requirement is met, the order
“freely allows” litigants and attorneys to exercise their
First Amendment rights (Pet. Br. 17, 32-33). But the
protection purportedly offered by the exception is illu
sory. The filing requirement is so onerous and the “good
faith” defense so fraught with uncertainty that the
order nevertheless operates as a prior restraint on
speech.
The filing requirement itself chills expression by im
posing a substantial burden on respondents and their
attorneys. It requires that a copy of every written com
munication and a “complete summary” of every oral
communication between respondents or their attorneys
and a potential class member be filed with the court.
Respondents could well find compliance with this re
quirement impossible since it presupposes that they know
what is constitutionally protected and that they possess
the means to comply.
The exception has an additional serious chilling effect
because it makes guilt or innocence on criminal contempt
charges depend on the assertion of “good faith.” As a
practical matter, neither a party nor an attorney can
safely take refuge in the exception since there is no cer
tainty that, or even predictability regarding whether and
when, the good faith defense will be credited. It may not
be as easy to establish “good faith” as petitioners appear
to assume. For example, where, as here, the court denies
the plaintiff’s request for permission to distribute to pro
spective class members a notice they correctly believe to be
constitutionally protected, it is by no means clear that
they could thereafter proceed to distribute a similar
notice in good faith. Significantly, the exception offered
little comfort to the respondents’ attorneys in this case,
who already had been accused by petitioners of miscon
duct. As the court of appeals concluded, “ [m]ost attor
neys, faced with an order like the one before us, would
pursue the course chosen by counsel in this case and seek
prior approval of the court before attempting to com
municate with actual or potential class members” (J.A.
252).
While a prior restraint on expression is not unconsti
tutional per se, it is subject to a “heavy presumption”
against its unconstitutionality, and the burden of justifi
cation is heavier than that imposed on subsequent restric
tions on speech. Southeastern Promotions, Ltd. v. Conrad,
supra; New York Times v. United States, 403 U.S. 713
(1971) ; Bantam Books, Inc. v. Sullivan, 372 U.S. 58
(1963). The greater protection against prior restraints
reflects the established First Amendment principle that
“a free society prefers to punish the few who abuse
rights of speech after they break the law than to throttle
them and all others beforehand.” Southeastern Promo
tions, Ltd. v. Conrad, supra, 420 U.S. at 559 (emphasis
added). Petitioners have failed to overcome this “heavy
presumption” in seeking to justify the broad restraint
imposed in this case.21
25
21 There obviously has been no showing- that the expression
sought to be restrained “ ‘surely [will] result in direct, immediate
26
2. Indeed, whether the district Court’s order is viewed
as a prior or subsequent restraint on speech, petitioners
have not demonstrated that it satisfies constitutional
standards. Attempts to punish or restrict speech after
the event, while not presumptively invalid, must never
theless withstand exacting scrutiny, both of the interests
asserted to justify the restriction and the means used to
achieve the asserted goals. See, e.g., Smith v. Daily Mail
Publishing Co., 443 U.S. 97, 102, 105 (1979). Thus, the
party seeking to uphold the subsequent restraint must
demonstrate that it serves a “state interest of the highest
form” (ibid.) and one that is “compelling” (First National
Bank of Boston v. Belloti, 435 U.S. 765, 786 (1978)). Even
a legitimate governmental purpose “cannot be pursued
by means that broadly stifle fundamental personal liber
ties when the end can be more narrowly achieved.” Shel
ton v. Tucker, 364 U.S. 479, 488 (1960). See Village of
Schaumburg v. Citizens for a Better Environment, 444
U.S. 620 (1980) ; Smith v. Daily Mail Publishing
Co., supra. In addition, the restrictions’ meaning must
be clear because “ [u]ncertain meanings inevitably lead
citizens to ‘steer far wider of the unlawful zone’ * * *
than if the boundaries of the forbidden areas were
clearly marked.” Grayned v. City of Rockford, 408 U.S.
104, 109 (1972) (citations and footnotes omitted).
Relying on the Manual, supra, petitioners attempt to jus
tify the district court’s order as an appropriate means of
preventing solicitation and misrepresentation, of protecting
absent class members from other “abuses” of the class ac
tion procedure and of furthering the proper administration
of justice (Pet. Br. 27, 29, 35). However, under NAACP
v. Button, supra, and its progeny,22 petitioners have no
and irreparable damage.’ ” International Society for Krishna Con
sciousness V. Eaves, 601 F.2d 809, 833 (5th Cir. 1979), quoting
New York Times Co. v. United States, supra, 403 U.S. at 730
(Stewart, J., joined by White, J., concurring).
22 In re Primus, supra; United Transp. Union v. State Bar of
Michigan, 401 U.S. 576 (1971) ; United Mine Workers V. Illinois
Bar Ass’n, 389 U.S. 217 (1967); Brotherhood of R.R. Trainmen v.
Va. State Bar, 377 U.S. 1 (1964).
27
legitimate interest in seeking to prohibit solicitation of
representation or participation in the suit by respondents
or their attorneys. As these cases recognize, respondents
and their attorneys have a constitutional right to asso
ciate and speak with Gulf’s employees in an effort to
eliminate racial discrimination and to use litigation as a
vehicle for achieving that end. This right encompasses
solicitation of other persons to bring and participate in
civil rights suits, at least in the absence of evidence not
present here of overreaching, misrepresentation, or other
misconduct. In re Primus, supra, 436 U.S. at 432.
With respect to the other interests asserted, we recog
nize that First Amendment protections are not unlim
ited, and that the district court has a legitimate inter
est in preventing misrepresentation, undue influence and
other substantive evils tending to impede the fair admin
istration of justice or the proper conduct of class actions.
See, e.g., Roadway Express, Inc. v. Piper, supra; In re
Primus, supra, 436 U.S. at 426. “ [T]he right of courts
to conduct their business in an untrammeled way lies at
the foundation of our system of government.” Wood v.
Georgia, supra, 370 U.S. 375, 388 (1962).
Nevertheless, these legitimate interests do not justify
the particular means employed here—a blanket restric
tion on out-of-court speech imposed in the absence of
any showing of a need to protect such interests in this
case. As we have noted (see pages 4-6, 17, supra),
the record contains no evidence, and the district court
did not find, that respondents or their attorneys had en
gaged in or were likely to engage in misrepresentation,
overreaching or other improper conduct. Nor is there
evidence that they otherwise posed a threat to the fair
administration of justice.
The district court’s order thus fails to satisfy a funda
mental First Amendment principle: “ [rlights of political
expression and association may not be abridged because
of * * * interests asserted by appellate counsel without
substantial support in the record or findings of the * * *
28
court.” In re Primus, supra, 486 U.S. at 434 n.27 (cita
tions omitted). Accord, First National Bank of Boston
V. Bellotti, supra, 435 U.S. at 789; Wood v. Georgia,
supra, 370 U.S. at 388; Bridges v. California, 314 U.S.
252, 271 (1941).23 As In re Primus demonstrates, this
principle specifically applies to prophylactic rules intended
to prevent attorney misconduct such as “undue influence,
overreaching, misrepresentation, invasion of privacy,
[and] conflict of interest.” 436 U.S. at 432. To justify
a restriction on protected speech in this context, there
must be a showing not that potential danger exists, but
that the activity “in fact involved th[is] type of miscon
duct.” Id. at 434.
Even if there had been a showing of actual or poten
tial misconduct in this case, the order is unconstitution
ally overbroad because it is not precisely tailored to re
strict only those communications determined to pose a
substantial threat to the legitimate interests purportedly
being served.24 This Court has repeatedly stated that
23 The Court stated in Bridges {ibid.) :
[W]e cannot start with the assumption that publications of
the kind here involved actually do threaten to change the
nature of legal trials * * *. We must therefore turn to the
particular utterances here in question and the circumstances
of their publication to determine to what extent the substan
tive evil of unfair administration of justice was a likely con
sequence, and whether the degree of likelihood was sufficient
to justify summary punishment.
24 The constitutional infirmity of the order would not be cured
if the four types of speech specified therein were exclusive rather
than illustrative (see pages 6-7, supra). While a. court may have
a legitimate interest in prohibiting improper solicitation of rep
resentation, of funds and of opt-out requests where there is a
danger of improper conduct, there is no justification for doing
so here. As we have shown, efforts by respondents or their attor
neys to solicit representation are constitutionally protected, and
the attorneys have not sought nor do they expect to receive com
pensation for their services from their clients or the potential class
(J.A. 113, 119). Therefore, the prohibitions in subparagraphs
2(a) and (b) of the order may not be constitutionally imposed in
29
“ [b]road propylactie rules in the area of free ex
pression are suspect. Precision of regulation must be the
touchstone * * NAACP v. Button, supra, 371 U.S.
at 438 (citations omitted). That is so because “First
Amendment freedoms need breathing space to survive
* * Id. at 433; accord, Village of Schaumburg v.
Citizens for a Better Environment, supra, 444 U.S. at 637;
In re Primus, supra, 436 U.S. at 426. There is no reason
to depart from these established principles in this case.
As we have noted (pages 14-15 & note 9, supra), the class
action procedure is not so inherently conducive to abuse as
to justify an assumption that misconduct will occur in ev
ery case, particularly in a Title VII action such as this
where respondents are represented by a non-profit organi
zation with recognized expertise in civil rights litigation.
Rule 23 provides a mechanism for balancing in each case
the interests in unsupervised communications against the
need to protect class members from a particular abuse.
The protection afforded speech and association in this
context by the First Amendment would obviously be
illusory if every conceivable threat of misrepresentation
or other danger to potential class members, however re
mote or speculative, were sufficient to justify a blanket
restriction on speech. As we have noted (pages 21-22,
supra), a district court in the conduct of trials places
significant restraints on the free expression and as-
this case. The prohibition against solicitation of opt-out requests
by defendants in subparagraph 2(c) by its terms is limited to class
actions brought under Rule 23 (b) (3). Since this case was brought
under Rule 23(b)(2), subparagraph (2) (c) similarly does not
apply. Finally, subparagraph (2) (d) prohibits all communications
“which may tend to misrepresent * * * the class action” and
“which may create impressions tending, without cause, to reflect
adversely on any party, any counsel, this Court, or the administra
tion of justice” (J.A. 125). The court of appeals was correct
in concluding that this provision merely compounds the uncon
stitutionality of the order because of its vagueness and overbreadth
(J.A. 256 n.26). See also Hirschkop v. Snead, supra; Chicago
Council of Lawyers v. Bauer, supra, 522 F.2d at 249; Zarate v.
Younglove, 86 F.R.D. 80, 101 (C.D. Cal. 1980).
30
sociation of litigants, attorneys, and other participants
in the proceedings. But “ [wjhatever may be the lim
its of a court’s powers in this respect, it seems that
they diminish in strength as the expressions and as
sociations sought to be controlled move from the court
room to the outside world.” Rodgers V. United States
Steel Corp., supra, 508 F.2d at 163. Even where the
competing interest is the accused’s constitutional right to
a fair trial, restrictions on First Amendment rights can
not be imposed “absent an overriding interest articulated
in findings.” Richmond Newspapers Inc. v. Virginia, No.
79-243 (July 2, 1980). If the demands of the Sixth
Amendment do not lessen the burden on those who seek
to justify a prior restraint on comments on pending liti
gation, certainly the interests of a civil litigant cannot
do so. See Hirschkop v. Snead, supra, 594 F.2d at 373.
The fact that a back pay offer was pending in this
case does not change this principle. To be sure, the
speech of respondents and their attorneys may have in
fluenced potential class members in exercising their choice
to accept Gulf’s settlement offer or to pursue their pri
vate right of action. But even in the commercial speech
area, the First Amendment rejects the “highly paternal
istic” approach of restrictions on what individuals may
hear. First National Bank of Boston v. Bellotti, supra,
435 U.S. at 790-792; Virginia Board of Pharmacy v.
Virginia Citizens Consumer Counsel, Inc., 425 U.S. 748,
770 (1976) ; Linmark Associates, Inc. v. Township of
Willingboro, 431 U.S. 85, 97 (1977). As the court stated
in First National Bank of Boston v. Bellotti, supra, 435
U.S. at 791-792 (citations omitted) :
[T]he people in our democracy are entrusted with
the responsibility for judging and evaluating the
relative merits of conflicting arguments. They may
consider, in making their judgment, the source and
credibility of the advocate. But if there be any
danger that the people cannot evaluate the informa
tion and arguments advanced by appellants, it is a
31
danger contemplated by the Framers of the First
Amendment.05
In any event, there are a number of alternative means
of serving the interests asserted by petitioners that do
not involve such broad restrictions on speech. If, parties
or attorneys, in communicating with potential class mem
bers, misrepresent the status, purposes or effect of the
class action (J.A. 125), remedial notice can be sent to the
affected group. See, e.g., Halverson v. Convenient Food
Mart, Inc., 458 F.2d 927, 929, 932 (7th Cir. 1972).06 Pur-
25 Although petitioners argue that the order was “evenhanded”
because it prohibited communications by any party or their attor
neys with prospective class members, they also concede (Pet. Br.
32 n.34) that the order allowed Gulf to resume the conciliation
process under the court’s supervision. While we agree that a court,
upon a specific showing of need, may take neutral steps to protect
potential class members from misrepresentation in the settlement
context, the order in this case was neither justified by the record
nor neutral in effect. By giving black employees a second oppor
tunity to accept Gulf’s back pay offer and by referring the em
ployees to Gulf’s notice of May 1, which did not present the employ
ees’ choice in objective terms (see Appendix, infra; note 15,
supra), the order in practice gave preferential treatment to the
speech-related activities of petitioners. Such selective regulation
of the content of speech violates the F irst and Fifth Amendments.
See, e.g., Carey V. Brown, No. 79-703 (June 20, 1980); First
National Bank of Boston v. Bellotti, supra; Police Dep’t of Chicago
V. Mosley, 408 U.S. 92, 95-96 (1972). As the Court stated in First
National Bank of Boston V. Bellotti, supra, 435 U.S. at 785 (foot
note omitted) :
Especially where, as here, the * * * suppression of speech sug
gests an attempt to give one side of a debatable public question
an advantage in expressing its views to the people, the First
Amendment is plainly offended.
28 In class actions brought under Rule 23(b)(3), parties who
opt out of the class in reliance on misrepresentations by defend
ants can be allowed to rejoin. See, e.g., Zarate V. Younglove, supra,
86 F.R.D. at 90 n.13. In Rule 23(b) (2) cases such as this, potential
class members who accept a settlement offer in reliance on incom
plete or inaccurate information from defendants can be treated as
a separate subclass of plaintiffs. See, e.g., Winfield V. St. Joe Paper
Co., supra.
32
poseful attorney misconduct can be handled by disciplin
ary proceedings, the traditional means of policing pro
fessional ethics. Improper conduct by parties or at
torneys may also be discouraged, where appropriate, by
denying or revoking class certification (see, e.g., Car
lisle v. LTV Electrosystems, Inc., 54 F.R.D. 237 (N.D. Tex.
1972), appeal dismissed, No. 72-1605 (5th Cir. June
23, 1972); Taub v. Glickman, 14 Fed. Rules Serv. 2d 847
(S.D.N.Y. 1970)) or by substituting class counsel (see,
e.g., Korn v. Franchard Corp., 456 F.2d 1206, 1208 (2d
Cir. 1972) ; Flaska v. Little River Marine Constr. Co., 389
F.2d 885 (5th Cir.), cert, denied, 392 U.S. 928 (1968)).
Misuse of the discovery process can be prevented by ob
taining, “for good cause shown,” a protective order under
Fed. R. Civ. P. 26 (c) (see, e.g., IBM v. Edelstein, 526 F.2d
37, 41 n.2 (2d Cir. 1975)) or by invoking the discovery
sanctions of Rule 37 (see, e.g., Roadway Express, Inc. v.
Piper, supra). Unreasonable or illegal cost-splitting or
contingent fee arrangements can be policed in part by
refusing to enforce them. Finally, in the rare case in
which they are warranted, the court has the inherent
power to levy such sanctions as dismissal of the suit or
assessment of attorneys’ fees directly against opposing
counsel (ibid.).
It is true that most of these alternatives remedy or
punish misconduct after it has occurred rather than pre
vent it from occurring in the first instance (but see Fed.
R. Civ. P. 26(c)). But as we noted above (see page
25, supra), implicit in the First Amendment is the
judgment that it is preferable to punish the few who
actually abuse their privileges than to suppress pro
tected speech beforehand: “It is always difficult to know
in advance what an individual will say, and the line
between legitimate and illegitimate speech is often so
finely drawn that the risks of freewheeling censorship
are formidable.” Southeastern Promotions, Ltd. v. Con
rad, supra, 420 U.S. at 559.
33
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
Leroy D. Clark
Wade H. McCree, Jr.
Solicitor General
James P. Turner
Acting Assistant Attorney General
Lawrence G. Wallace
Deputy Solicitor General
Harlon L. Dalton
Assistant to the Solicitor General
Jessica Dunsay S ilver
Carol E. Heckman
Attorneys
General Counsel
Equal Employment
Opportunity Commission
March 1981
la
APPENDIX
Dear Mr. Hayes:
May 1,1976
In line with its continuing policy of providing equal
opportunity to all employees and annuitants, Gulf has
recently entered into an agreement with the United
States Equal Employment Opportunity Commission and
the U. S. Department of the Interior. As part of the
written agreement, Gulf has identified certain employees
and annuitants to whom back pay will be offered in set
tlement of past discrimination claims, even though Gulf
does not admit to having discriminated against anyone.
You are a member of this group of employees and annui
tants, and should you accept the terms of this offer, you
will immediately receive by certified mail $1,163.34 less
legal deductions for social security, if applicable, and
income tax. The amount of your back pay was figured
according to your plant seniority date, and very prob
ably will not be the same as that of anyone else presented
an offer under the agreement.
Because this offer is personal in nature, Gulf asks that
you not discuss it with others. Gulf will likewise respect
your complete privacy by not disclosing the amount of
fered you to other employees or annuitants. Even though
both you and Gulf may feel that you have not been dis
criminated against in any way by Gulf, the money is
available to you upon acceptance. To help you make a
decision, Gulf wants you to understand that the only
condition for accepting back pay is that you sign a writ
ten statement releasing Gulf from any possible claims of
employment discrimination occurring before the date of
your release, including any future effects of alleged past
practices. Of course, in all other ways you will retain
full rights to administrative and legal processes.
Enclosed you will find a written “Receipt and General
Release”. You may immediately receive your back pay
check by completing all questions on the Receipt and
General Release, signing before a Notary Public and
2a
returning it in the self-addressed envelope provided. Ser
vices of a Notary Public will be provided at no charge by
calling 983-3301, ext. 484 or 467. Once you have returned
the signed Receipt and General Release, you should re
ceive your check by mail within 7 to 10 days.
If you feel that you cannot respond because you do not
understand Gulf’s offer, you may contact Mr. C. B. Dra
per at 983-3301, ext. 467, during normal business hours,
to arrange an interview with a government representa
tive who will answer your questions.
Gulf Oil Co.-U. S.
By: / s / B. F. Short
B. F. Short
Equal Employment Opportunity
Commission
By: /s / James R. Anderson
J ames R. Anderson
Enclosure
■& U. S . GOVERNMENT PRINTING OFFICE; ! 9 8 l 3 3 8 8 4 5 2 7 3