Gulf Oil Company v. Bernard Brief for the Petitioners

    No. 80-441

IN THE

uprattr Court of %  ptnibh
October T erm  1980

GULF OIL COMPANY, ET AL., 
Petitioners,

v.
WESLEY P. BERNARD, ET AL., 

Respondents.

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The Fifth Circuit

BRIEF FOR THE PETITIONERS

W m . G. Duck 
Susan R. Sewell 
P. O. Box 3725 
Houston, Texas 77001 
(713) 754-2953
Attorneys for Petitioner 
GULF OIL COMPANY
Carl A. Parker 
449 Stadium Road 
Port Arthur, Texas 77640
Attorney for Petitioners 
INTERNATIONAL AND 
LOCAL UNIONS

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002



I

*5

No. 80-441

IN THE

Supreme fflmtrt of iht 3Smteh States
October T erm  1980

GULF OIL COMPANY, ET AL., 
Petitioners,

v.
WESLEY P. BERNARD, ET AL., 

Respondents.

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The Fifth Circuit

BRIEF FOR THE PETITIONERS

QUESTION PRESENTED FOR REVIEW
Whether during the pendency of a class action, a United 

States district court can constitutionally enter an order 
limiting certain communications between plaintiffs or 
their attorneys and potential or actual class members not 
yet formal parties to the action, in order to prevent actual 
and potential abuses of the class action device?



II

PARTIES BELOW
The following is a listing of all parties to this proceed­

ing, as required by United States Supreme Court Rule 
34.1(b):

T. Subsidiaries and Affiliates of Petitioner Gulf Oil 
Company:*
Afran Bahamas Limited Marine Dept.; Alberta Products 
Pipe Line Ltd.; Allied-General Nuclear Services; Ameri­
can Heavy Lift Shipping Company; Asia Polymer Cor­
poration; A/S Jargul; A/S Jargul and Co. K/S; Austra­
lian Gulf Oil Company; Balinesian Gulf Oil Ltd.; Britama 
Tankers Limited; Cabinda Gulf Oil Company; China Gulf 
Plastics Corporation; Canada Systems Group (EST) Limit­
ed; Carboquimica, S. A. Ltd.; China Gulf Oil Company, 
Ltd.; China Gulf Plastics Corporation; Colonial Pipeline 
Company; Compania Petrolera Aquarico, S.A.; Compag- 
nie D’lnvestments Pour Les Combustibles De Reacteurs a 
Haute Temp; Coser, S.A.; Eastern Gulf Oil Company, Ltd.; 
Eastern Venezuela Gas Transport Company; Ethylene Pij- 
pleidingMaatschappij (Belgium) S.A.; Ethylene Pijpleiding 
Maatschappij (Nederland) B.V.; Explorer Pipeline Com­
pany; Gaelic Oil Co. Ltd.; G & C Realty Limited; General 
Atomic Company; General Atomic Europe-G.m.b.H.- 
Zurich; Gulf Canada, Ltd.; Gulf-Dravo Systems Corpora­
tion; Gulf Ecuatoriana de Petroleo, S.A.; Gulf Italia Pro­
duction Co. S.p.A.; Gulf Italiana SpA; Gulf Oil A/S; 
Gulf Oil (Belgium) S.A,.;. Gulf Oil Chemicals Company 
Asia Limited; Gulf Oil Company (Nigeria) Ltd.; Gulf 
Oil Company of Gabon; Gulf Oil Company (Portugal) 
Limited; Gulf Oil Company South Asia; Gulf Oil Egypt, 
Ltd.; Gulf Oil (Great Britain) Ltd.; Gulf Oil (Ireland) 
Ltd.; Gulf Oil (Luxembourg) S.A.; Gulf Oil Pakistan 
Ltd.; Gulf Oil Refining Ltd.; Gulf Oil Sales, Inc.; Gulf

In accordance with United States Supreme Court Rule. 28.1, 
this listing omits wholly-owned subsidiaries which were included in 
the list of parties submitted in the Petition for writ of certiorari.



Ill

Oil (Switzerland); Gulf Oil Trading GmbH; Gulf Oil 
Trading Investments Limited; Gulf Oil Zaire S.a.R.L.; 
Gulf Oman Petroleum Ltd.; Gulf-Preload Structures Inc.; 
Gulf Supply and Distribution Co. Ltd.; Gulf (U.K.) Off­
shore Investments Limited; Harshaw Cabo & Cia, S.A.; 
Harshaw Chemie S.a.R.L.; Harshaw Galvanotechnia S.A.; 
Harshaw Quimics Ltda.; Hochtemperature Reaktorbau 
G.m.b.H.; Hutchinson Island Limited Partnership; Ico 
Pintures, S.A.; Industrial Vencedor S.A.; Interquimics 
S.A.; INSCO Holding and Finance Company N.V.; INS- 
CO Limited; Java Gulf Ltd.; Keydril Ltd.; Keydril (Ni­
geria) Ltd.; Key International Drilling Co. Limited; Key 
Perfuracoes Maritimas, Ltd.; Korea Oil Corporation; 
Kupan Emirates Company Ltd.; Kupan Financial Com­
pany (Rotterdam) B.V.-Minerals Branch; Kuwait Oil 
Company Limited; Laurel Pipe Line Company; London 
Oil Refining Company Limited; Mid-Atlantic Chemical 
Corp. S.A.; Midcaribbean Investments Ltd.; Midwest Car­
bide Corporation; Millmaster Onyx (Canada) Ltd.; Mill- 
master Onyx G.m.b.H; Montreal Pipe Line Company 
Limited; Mozambique Gulf Oil Company; Okinawa Seki- 
yu Company, Ltd.; Okinawa Terminals Co., Ltd.; Okla­
homa Nitrogen Company; Panindustrial, S.A.; Peace Pipe 
Line, Ltd.; Pembroke Cracking Company; Permaping, 
S.A.; Petroleo Gulf de Brazil Limitada; Petroleos Guff de 
Guatemala, S.A.; Plaschem International Company 
(Hong Kong) Ltd.; Plastigama, S.A.; Productos Quimicos 
Somox, Ltda.; Project Baltic; Propet Company Ltd.; Raf- 
finerie de Cressier S.A.; Rimbey Pipe Line Co., Limited; 
Rio Blanco Oil Shale Partnership; Sarni S.p.A.; Silver- 
town Lubricants Limited; Sociedad Anonima Espanola de 
Lubrificantes; Societe de Combustible Pour Reacteurs a 
Haute Temp.; South Pacific Gulf Oil Company; Spanish 
Gulf Oil Company; Spencer Quimica Mexicana S.A. de 
C.V.; Sultron Ltd.; Sulzer General Atomic Waermetaus- 
cher; Taita Chemical Corporation; Trans Northern Pipe 
Line Company; Venezuela Gulf Refining Company; West 
Texas Gulf Pipe Line Company; Western G.M.C. Pontiac 
Buick Ltd.



IV

2. The Petitioner Unions are:
Oil, Chemical and Atomic Workers International Union, 
and Local Union No. 4-23 and Oil, Chemical and Atomic 
Workers International Union, defendants.
The International Association of Machinists and Aero­
space Workers, Port Arthur Lodge No. 823; International 
Association of Machinists and Aerospace Workers; Inter­
national Brotherhood of Electrical Workers, Local Union 
No. 390; International Brotherhood of Electrical Workers, 
AFL-CIO; United Transportation Local Union; Inter­
national United Transportation Union; Bricklayers, Ma­
sons, and Plasterers International Union, Local 13; and 
International Bricklayers, Masons, and Plasterers Union 
were prospective defendants named in plaintiffs’ (now Re­
spondents’) motion to join additional defendants and for 
leave to amend the complaint. This motion was pending 
when the district court granted summary judgment for the 
existing defendants (now Petitioners).

3. Respondents are:
Wesley P. Bernard; Elton Hayes, Sr.; Rodney Tizeno; 
Hence Brown, Jr.; Willie Whitley and Willie Johnson; the 
proposed class of all black employees now employed or 
formerly employed by defendant, Gulf Oil Company, in 
Port Arthur, Texas, and all black applicants for employ­
ment at Gulf Oil Company who have been rejected for 
employment at the company.



V

TABLE OF CONTENTS

QUESTION FOR REVIEW .................................................. I

PARTIES BELOW ..................................................................  II
TABLE OF AUTHORITIES ......................   VI

OPINIONS BELOW ................................................................  1
JURISDICTIONAL STATEMENT .....................................  2

CONSTITUTIONAL PROVISION AND FEDERAL
RULE INVOLVED ..........................................................  2

STATEMENT OF THE CASE .............................................  3
SUMMARY OF ARGUMENT ..............................................  7
ARGUMENT: .........................................................    12

I. ENTRY OF THE ORDER WAS A PROPER EX­
ERCISE OF THE DISTRICT COURT’S AU­
THORITY UNDER RULE 23 .................................  14
A. Class actions are a special kind of litigation

where the court must protect the interests of 
absent class members .............................................. 14

B. An order monitoring communications will insure
protection of absent class m em bers.......................  17

C. The monitoring order entered here is appropriate 22
II. THE ORDER OF THE DISTRICT COURT

MONITORING COMMUNICATIONS WITH PO­
TENTIAL CLASS MEMBERS IS CONSTITU­
TIONAL .....................................   26
A. First amendment values must be reconciled with

the court’s duty to protect the fair and efficient 
administration of justice .......................................  27

B. The order entered in this case is not a prior re­
straint ........................................................................  31

C. The facts in this case support entry of the order
based on any of the previously articulated stand­
ards .............................................................    34

CONCLUSION ..........................................................................  37
CERTIFICATE OF SERVICE .............................................  38

Page



VI

TABLE OF AUTHORITIES

CASES Page
Abrams v. United States, 250 U.S. 616 (1919) ..................  28
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . .  24,25
Alpine Pharmacy, Inc. v. Chas. Pfizer & Co., Inc., 481 F.2d

1045 (2d Cir.), cert, denied, 414 U.S. 1092 (1973) . . . .  19
American Finance System, Inc. v. Harlow, 65 F.R.D. 572

(D. Md. 1974) .'..................................................................... 24,25,26
Amos v. Board of School Directors of the City of Mil­

waukee, 408 F. Supp. 765 (E.D. Wis. 1976), aff’d sub 
nom. Armstrong v. Brennen, 359 F.2d 625 (7th Cir.
1976), vacated, 433 U.S. 627 (1977) .................................. 19

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ........  29
Bernard v. Gulf Oil Co., 596 F.2d 1249 (5th Cir. 1979),

rev’d in part, en banc, 619 F.2d 459 (5th Cir. 1980) . . .  20, 22
Bloom v. Illinois, 391 U.S. 194 (1968) ............................. .. 34
Bottino v. McDonald’s Corp., [1973-2] Trade Cases [f 74,810

(S.D. Fla. 1973) ....................................................................  26
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.

1969) ......................................................................................... 16
Branzburg v. Hayes, 408 U.S. 665 (1972) ........................... 27
Bridges v. California, 314 U.S. 252 (1941) ........................... 28,36
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ..................... 35
Buckley v. Valeo, 424 U.S. 1 (1976) ...................................  27
Carlisle v. LTV Electrosystems, Inc., 54 F.R.D. 237 (N.D.

Tex. 1972) .......................................................................... 15
CBS Inc. v. Young, 522 F.2d 234 (6th Cir. 1975) ............  29
Cheff v. Schnackenberg, 384 U.S. 373 (1966) ..................... 34
Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th

Cir. 1975), cert, denied, 427 U.S. 912 (1976) ............ 28,33,36
Chrapliwy v. Uniroyal, Inc., 71 F.R.D. 461 (N.D. Ind.

1976) ......................................................................................... 24
Cobbledick v. United States, 309 U.S. 323 (1940) ............  33
Connolly--v. General Construction Co., 269 U.S. 385 (1926) 35
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ........  14,22
Cox v. Louisiana, 379 U.S. 559 (1965) .................................  27
Craig v. Harney, 331 U.S. 367 (1947) .................................  36
Cranston v. Freeman, 290 F. Supp. 785 (D.N.Y. 1968), 

rev’d on other grounds sub nom. Cranston v. Hardin, 428 
F.2d 822 (2d Cir. 1970), cert, denied, 401 U.S. 949
(1971) .........................................................    16

Dent v. St. Louis-San Francisco Railway, 406 F.2d 399
(5th Cir. 1969), cert, denied, 425 U.S. 944 (1971) ........  24

Deposit Guaranty National Bank. Jackson, Mississippi v.
Roper, 445 U.S. 326 (1980) ............................................    15,17



Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977) . .  13
EEOC v. Red Arrow Corp., 8 Fair Empl. Prac. Cas. 621

(E.D. Mo. 1974) ..................................................................  15
EEOC v. Singer Controls Co. of America, 80 F.R.D. 76

(N.D. Ohio 1978) ............................................................ .. . 26
Erhardt v. Prudential Group, Inc., 629 F.2d 843 (2d Cir.

1980) ......................................................................................... 21
Estes v. Texas, 381 U.S. 532 (1965) ..................................... 27
Friedman v. Rogers, 440 U.S. 1 (1979) .............................. 29
Gannett Co. v. DePasquale, 443 U.S. 368 (1979) .............26,27,32
Gas-A-Tron of Arizona v. Union Oil Co. of California, 534

F.2d 1322 (9th Cir.), cert, denied, 429 U.S. 861 (1976) 28
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ............  30
Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) . . . .  30
Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911) 33
Hagans v. Lavine, 415 U.S. 528 (1974) ...............................  13
Hawkins v. Holiday Inns, Inc., [1978-1] Trade Cases

([ 61,838 (W.D. Tenn. 1978) .............................    15
Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979) ..........  36
Huff v. N. D. Cass Co., 485 F.2d 710 (5th Cir. 1973) . . .  16
In  re Air Crash Disaster at Florida Everglades, 549 F.2d

1006 (5th Cir. 1977) ........................................... .. 16
In re General Motors Corp. Engine Interchange Litigation,

594 F.2d 1106 (7th Cir.), cert, denied, 444 U.S. 870
(1979) ...........................................................    24

In  re Gilley, 30 Fed. R. Serv. 2d 139 (5th Cir. 1980) . . . .  22
In re Halkin, 598 F.2d 176 (D.D.C. 1979) ..................... 33
In re Lilia Ann Norton, 622 F.2d 917 (5th Cir. 1980) . . .  22
In re Oliver, 333 U.S. 257 (1948) .......................................  34
In re Primus, 436 U.S. 412 (1978) .....................................  29,33
Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957) . . .  32,34
Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968) 16
Konigsberg v. State Bar of California, 366 U.S. 36 (1961) 27
Lewis v. Bloomsburg Mills, Inc., 21 Fed. R. Serv. 2d 748

(D.S.C. 1976) ...................................   21
Lupia v. Stella D ’Oro Biscuit Co., [1974-1] Trade Cases 

f  75,047 (N.D. 111. 1972),, appeal dismissed, (7th Cir.
1973), cert, denied, 417 U.S. 930 (1974) ......................... 18

Michaelson v. United States, 266 U.S. 42 (1924) ..............  34
Murdock v. Pennsylvania, 319 U.S. 105 (1943) ............... 27
N.O.W. v. Minnesota Mining and Manufacturing Co., 18 

Fair Empl. Prac. Cas. 1176 (S.D.N.Y.), appeal dismissed,
578 F.2d 1384 (8th Cir. 1978) ................................. 15,20,23,26

NAACP v. Button, 371 U.S. 415 (1963) ............ ..............  29
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) . . . .  27,31

VII

CASES Page



New York Times v. Sullivan, 376 U.S. 2S4 (1964) ..........  30
New York Times Co. v. United States, 403 U.S, 713 (1971) 32
Norris v. Colonial Commercial Corp., 77 F.R.D. 672 (S.D.

Ohio 1977) ......................................................... ..................  26
Northern Acceptance Trust 1065 v. AMFAC, Inc., SI

F.R.D. 487 (D. Hawaii 1971) .........................................  IS
Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) . . . .  33
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) 14
Oswald v. McGarr, 620 F.2d 1190 (7th Cir. 1980) ............  21
Palko v. Connecticut, 302 U.S. 319 (1937) ...........................  27
Patterson v. Colorado, 20S U.S. 454 (1907) .....................  28
Pell v. Procunier, 417 U.S. 817 (1974) ............................  27
Pennekamp v. Florida, 328 U.S. 331 (1946) ...................... 28,36
Philadelphia Electric Co. v. Anaconda American Brass Co.,

42 F.R.D. 324 (E.D. Pa. 1967) ....................................  25
Red Lion Broadcasting Co. v. FCC, 395 U.S. 376 (1969) 30
Reed v. Sisters of Charity of the Incarnate Word of Louisi­

ana, Inc., 25 Fed. R. Serv. 2d 331 (W.D. La. 1978) . . .  15
Rental Car of New Hampshire, Inc. v. Westinghouse Electric

Corp., 496 F. Supp. 373 (D. Mass. 1980) .........................  19
Rodgers v. United States Steel Corp., 536 F.2d 1001 (3d

Cir. 1976) ..............................................................................  36
Rodgers v. United States Steel Corp., 70 F.R.D. 639 (W.D.

Pa. 1976) ................................................................................. 25
Rothman v. Gould, 52 F.R.D. 494 (S.D.N.Y. 1971) ........  15
Sanders v. John Nuveen & Co., 463 F.2d 1075 (7th Cir.),
■ cert, denied, 490 U.S. 1009 (1972) ...................................  15,16
Sheppard v. Maxwell, 384 U.S. 333 (1966) .......................27, 28,36
Shillitani v. United States, 384 U.S. 364 (1966) ...............  34
Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) . .  31
Smith v. Josten’s American Yearbook, 78 F.R.D. 154 (D.

Kan. 1978), ap’d, 624 F.2d 125 (10th Cir. 1980) ........  19
Snepp v. United States, 444 U.S. 507 (1980) ..................... 30
Sperry Rand Corp. v. Larson, 554 F,2d 868 (8th Cir. 1977) 15
Thomas v. Collins, 323 U.S. 516 (1945) ...............................  33
Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961) 31
Union Tool Co. v. Wilson, 259 U.S. 107 (1922) ...............  33
United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) 30
United States v. Allegheny-Ludlum Industries, Inc., 517 F,2d

826 (5th Cir. 1975), cert, denied, 425 U.S. 944 (1976) 25
United States Civil Service Commission v. National Ass’n

of Letter Carriers, 413 U.S. 548 (1973) ...................30,31,32,35
United States v. Dickinson, 465 F.2d 496 (5th Cir. 1972), 

cert, denied, 414 U.S. 979 (1973) .......................................  33

V1H

CASES Page



IX

United States v. Hvass, 355 U.S. 570 (1958) ..................... 28
United States v. Marx, 553 F.2d 874 (4th Cir. 1977) . . . . .  34
United States v. Nixon, 418 U.S. 683 (1974) ........ ................  13
United States v. Ryan, 402 U.S. 530 (1971) ....................... 33,34
United States v. Tijerina, 412 F.2d 661 (10th Cir.), cert.

denied, 396 U.S. 990 (1969) ..........................................  27,36
United Transportation Union v. State Bar of Michigan, 401

U.S. 576 (1971) .................    29
Vance v. Universal Amusement Co., 445 U.S. 308 (1980) 34
Virginia State Board of Pharmacy v. Virginia Citizens Con­

sumer Council, Inc., 425 U.S. 748 (1976) ................... 29
Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782 (E.D.

La. 1977) ............................................................................18,33,34,35
Walker v. Birmingham, 388 U.S. 307 (1967) ...................... 33
Weightwatchers of Philadelphia, Inc. v. Weight-watchers In­

ternational, Inc., 455 F.2d 770 (2d Cir. 1972) ............... 13, 22
Weisman v. Darneille, 78 F.R.D. 671 (S.D.N.Y. 1978) . . .  15,21
Winfield v. St. Joe Paper Co., 20 Fair Empl. Prac. Cas.

1093 (N.D. Fla. 1977) ................................................. 19
Wood v. Georgia, 370 U.S. 375 (1962) ...............................  36
Yaffe v. Detroit Steel Corp., 50 F.R.D. 481 (N.D. 111.

1970) .........................................................................................  IS
Younger v. Smith, 30 Cal. App. 3d 138: 106 Cal. Rep. 225

(1973) ....................................................' .................................  36
Zarate v. Younglove, 86 F.R.D. 80 (C.D. Cal. 1980) . . .  28

CONSTITUTIONAL PROVISIONS, STATUTES,
RULES AND REGULATIONS

U.S. Const., amend. I ................................................................ 2
Civil Rights Act of 1866, 42 U.S.C. § 1981 (1974) ........  3
28 U.S.C. § 1254(1) ................................................................  2
Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e

et seq. (1974) ......................................................................  3
Fed. R. Civ. P. 23 ...........................      passim
Fed. R. Civ. P. 34(d) ............................................................  14
Fed. R. Crim. P. 17(c) ...........................................................  13
Fed. R. Crim P. 42(b) ...........................................................  34
Sup. Ct. R. 7 ............................................................................  28

CASES Page



X

Page
Local District Court Rules:

D. Md. R. 20 ...................................................... .............  13
E. D. La. R. 2.12 .................................... ........................ 13
M. D.N.C. R. 17(b)(6) ................................................  13
N. D. Fla. R. 17B ......................    13
N.D. Ga. R. 221.2 ..............................................................  13
N.D. Ga. R. 221.3 ..............................................................  13
N.D. 111. (Civ.) R. 22 ..............      13
N.D. Tx. (unpublished) ..................................................  13
S.D. Fla. R. 19B ...............................................................  13
S.D. Ohio R. 3.9.4 ............................................................. 13
S.D. Tx. R. 6 ...................................................................  13
W.D. Pa. R. 34 ........................... .....................................  13
W.D. Wash. (Civ.) R. 23(g) .......................................... 13

OTHER AUTHORITIES
Adequate Representation, Notice and the New Class Actions 

Rule: Effectuating Remedies Provided by the Securities
Law, 116 U. Pa. L. Rev. 889 (1968) .............................  16

Developments in the Law— Class Actions, 89-B Harv. L.
Rev. 1318 (1976) ...................................................................  24

Dole, The Settlement of Class Actions for Damages, 71
Colum. L. Rev. 971 (1971) ..............................................  24

3B J. Moore Federal Practice (2d ed. 1980) .....................15,16,26
Manual for Complex Litigation, 1 (Pt. 2) J. Moore Federal

Practice Pt. II, § 1.41 (2d ed. 1980) ...............................  passim



No, 80-441

IN THE

hpttxm  (Kauri af tht Hntfrh flairs
O c t o b e r  T e r m  1980

GULF OIL COMPANY, ET AL„ 
Petitioners,

v.
WESLEY P. BERNARD, ET AL., 

Respondents.

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The Fifth Circuit

BRIEF FOR THE PETITIONERS

OPINIONS BELOW
The opinion of the court of appeals, sitting en banc 

(J.A. 231) is reported at 619 F.2d 459. The order of 
the court of appeals granting a rehearing en banc (J.A. 
229) is reported at 604 F.2d 449. The vacated panel 
opinion of the court of appeals, of which parts I, II, and 
III are adopted by the en banc opinion (J.A. 175) is



2

reported at 596 F.2d 1249. The order of the district court 
granting Defendants’ Motion for Summary Judgment 
(J.A. 170) is not reported.

JURISDICTION

The judgment of the court of appeals, sitting en banc, 
was entered on June 19, 1980. The Petition for Writ of 
Certiorari was filed on September 17, 1980, and was 
granted on December 8, 1980. (J.A. 279). The jurisdic­
tion of this Court rests upon 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION AND 
FEDERAL RULE INVOLVED

The first amendment to the United States Constitution 
provides, in part:

Congress shall make no law . . . abridging the free­
dom of speech, or of the press; or the right of the 
people peaceably to assemble. . . .

Fed. R. Civ. P. 23(d) provides:

(d) Orders in Conduct of Actions. In the conduct of 
actions to which this rule applies, the court may 
make appropriate orders: (1) determining the course 
of proceedings or prescribing measures to prevent 
undue repetition or complication in the presentation 
of evidence or argument; (2) requiring, for the pro­
tection of the members of the class or otherwise for 
the fair conduct of the action, that notice be given in 
such manner as the court may direct to some or all 
of the members of any step in the action, or of the 
proposed extent of the judgment, or of the oppor­
tunity of members to signify whether they consider 
the representation fair and adequate, to intervene



3

and present claims or defenses, or otherwise to come 
into the action; (3) imposing conditions on the 
representative parties or on interveners; (4) requir­
ing that the pleadings be amended to eliminate there­
from allegations as to representation of absent per­
sons, and that the action proceed accordingly; (5) 
dealing with similar procedural matters. The orders 
may be combined with an order under Rule 16, and 
may be altered or amended as may be desirable from 
time to time.

STATEMENT OF THE CASE
This class action was commenced on May 18, 1976, 

against Petitioners Gulf Oil Company and the unions1 
by six present or retired black employees of Gulf’s Port 
Arthur, Texas refinery. (R. 1). The suit alleged that Peti­
tioners had engaged in racial discrimination prohibited 
by Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§ 2000e et seq., and the Civil Rights Act of 1866, 42 
U.S.C. § 1981. (J.A. 11). The Respondents sought to 
represent a class of all black employees presently and form­
erly employed at the Port Arthur refinery, and all black 
applicants who had been rejected for employment at any 
Gulf facility, without regard to temporal or geographic 
limits. (J.A. 12).

In 1967, three of the Respondents had filed charges of 
discrimination against Petitioners with the Equal Employ­
ment Opportunity Commission (EEOC) for which the 
EEOC found reasonable cause on August 15, 1967. 
(R. 212, 228, 231, 234, 238). At the same time the in­
dividual charges of discrimination were pending, concilia­

1. The union Petitioners are the Oil, Chemical and Atomic 
Workers International Union, Local Union No. 4-23 and the Oil, 
Chemical and Atomic Workers International Union.



4

tion discussions were being conducted between Gulf, the 
EEOC, and the Office for Equal Opportunity, United 
States Department of Interior (OEO) (J.A. 73, 78) 
pursuant to a charge of discrimination filed by a Com­
missioner of the EEOC in 1968. (J.A. 54). These nego­
tiations between Gulf, the EEOC, and the OEO regard­
ing the Commissioner’s charge took place over a period 
of several years (J.A. 73, 78) and resulted in a concilia­
tion agreement between the EEOC, the OEO, and Gulf 
on April 14, 1976. (J.A. 26). The agreement established 
“goals and timetables” for specific affirmative action re­
lief (J.A. 32-38), as well as providing an award of over 
$900,000 to 616 present and former black employees, 
and 29 female employees at Gulf’s Port Arthur refinery. 
(J.A. 28, 48). In sworn affidavits the District Director 
of the EEOC and the Western Regional Manager of the 
OEO stated the conciliation agreement was a fair and 
reasonable settlement of all pending charges of discrimina­
tion. (J.A. 75, 78).

After the conciliation agreement was finalized, Gulf, 
pursuant to terms of the agreement, mailed a letter and 
release, the form of which was approved by the federal 
agencies, notifying all employees covered by the concilia­
tion agreement that they were entitled to an award of 
back pay, and that upon execution of the general release, 
the employees would receive the back pay award. (J.A. 
31, 74). At the time this action was filed, approximately 
431 black employees out of a total of 616 black em­
ployees entitled to a back pay award had executed the 
receipt and general release, and had received their back 
pay checks. (J.A. 74). On May 25, 1976, after being 
served with the complaint, (R. 11) Gulf voluntarily ceased 
further distribution of the back pay awards and ceased



5

all contacts with potential class members concerning the 
conciliation agreement. (J.A. 43, 74, 75).

On May 22, 1976, four days after this action was filed, 
attorneys for Respondents attended a meeting of actual 
and potential class members (J.A. 115, 118), and accord­
ing to affidavits filed in this case, discussed with the poten­
tial class members the issues involved in this action, ans­
wered questions from the audience, and explained the 
administrative and legal problems inherent in fair employ­
ment litigation. (J.A. 115, 116, 118).

After the meeting, Gulf’s counsel, by emergency mo­
tion, represented to the district court that it had learned 
that an attorney for Respondents advised the participants 
at the meeting to mail back the checks they had received 
from Gulf, since by prosecuting the present action Re­
spondents’ attorney could recover at least double the 
amount which was paid under the conciliation agreement. 
(J.A. 22, 23, 24). Gulfs emergency motion sought an 
interim order limiting communications between potential 
class members and all parties and their counsel to this 
lawsuit. (J.A. 21, 25). On May 28, 1976, District Judge 
Steger, ruling in Chief Judge Fisher’s absence, granted 
Gulfs motion and entered the interim order. (J.A. 44).

Judge Steger’s interim order required Gulf to file an­
other motion upon Judge Fisher’s return. (J.A. 45). Gulf 
filed a motion to modify Judge Steger’s interim order 
limiting communications on June 8, 1976. (J.A. 46). 
After submission of briefs accompanied by five affidavits 
(J.A. 71, 76, 111, 115, 118) and after a hearing (J.A. 1, 
3), Judge Fisher entered a modified order (J.A. 124) which 
allowed constitutionally protected communications. (J.A. 
125). The modified order was adopted almost verbatim



6

from “Sample Pre-trial Order No. 15—Prevention of 
Potential Abuses of Class Actions” contained in the 
Manual for Complex Litigation, 1 (Pt. 2) J. Moore, 
Federal Practice Pt. II, § 1.41 (2d ed. 1980). (J.A. 97). 
Also, the order allowed a resumption of the conciliation 
process under the court’s supervision. (J.A. 125-129).

On July 6, 1976, Respondents and their attorneys 
moved for permission to communicate with members of 
the proposed class (J.A. 130), tendering to the court the 
substance of the communication in the form of a leaflet. 
(J.A. 132). This motion was denied by the court on 
August 10, 1976. (J.A. 157).

After the district court granted summary judgment for 
the defendants on January 11, 1977, (J.A. 170), Re­
spondents appealed to the United States Court of Appeals 
for the Fifth Circuit. (R. 392). On June 15, 1979, a 
panel of the court reversed the judgment of the district 
court and remanded for further proceedings. (J.A. 175). 
The panel held that neither the statute of limitations nor 
the equitable doctrine of laches barred Respondents’ 
claims. However, the panel did uphold the order limiting 
communications with members of the putative class as 
a permissible exercise of the district court’s discretionary 
authority to control class actions under Rule 23(d) of 
the Federal Rules of Civil Procedure. Upon hearing en 
banc, the Fifth Circuit adopted all parts of the panel 
decision, but reversed the panel’s approval of the order 
affecting communications, holding it was unconstitutional. 
(J.A. 231).

This Court granted the writ of certiorari on December 
8, 1980, expressly limiting review to the district court’s



7

order respecting communications with potential class 
members.2 (J.A. 279).

SUMMARY OF ARGUMENT

I.
ENTRY OF THE ORDER WAS A PROPER EXER­

CISE OF THE DISTRICT COURT’S AUTHORITY 
UNDER RULE 23

A. Class actions are a special kind of litigation 
where the court m ust protect the interests of 
absent class members.

This case raises substantial and important questions 
concerning the district court’s authority under Fed. R. 
Civ. P. 23 to manage a class action case and to provide 
for the protection of absent class members. In this case, 
the Court has limited its review to a class action proced­
ural issue which will require the Court to balance the 
needs of the district court to manage class actions against 
the needs of Respondents and their attorneys to communi­
cate with potential members of a proposed class, absent 
court supervision.

Class actions are a special kind of litigation where the 
district court is required to protect the interests of absent 
class members while actively managing class proceedings. 
Rule 23(d) provides the district court, as guardian of 
absentees’ rights, with broad authority to fashion appro­
priate orders to prevent abuses of the class action device.

2. The petition for writ of certiorari alsô  raised the issues of 
laches and statute of limitations.



8

B. An order monitoring communications will in ­
sure protection of absent class members.

This Court has ruled that in class action cases it is the 
primary responsibility of the district court to monitor 
the actions of the parties before it. The most widely ac­
cepted order for fairly and equitably monitoring the activ­
ity of parties and their attorneys is that proposed by the 
Board of Editors of the Federal Judicial Center.

The Manual’s order, while designed to control some 
communications, freely allows: 1) constitutionally pro­
tected communications with absent class members; 2) all 
communications approved by the court; 3) communica­
tions between an attorney and his client, or a prospective 
client, who has on the initiative of the client or prospec­
tive client consulted with, employed, or proposed to 
employ the attorney; or 4) communications occurring in 
the regular course of business or in the performance of 
the duties of a public office or agency . . . which do not 
have the effect of soliciting representation by counsel, or 
misrepresenting the status, purposes or effect of the action 
and orders therein.

The order recommended in the Manual is the product 
of the combined experience of the judges comprising the 
Board of Editors, who recognized the impossibility of 
drafting an order which would cover every potential 
abuse. Consequently, the Manual’s order is drawn as 
narrowly as possible to accomplish its intended purposes 
and represents the best possible monitoring device avail­
able to protect absent class members from misrepresenta­
tions during class action litigation.



9

C. The monitoring order entered here is appro­
priate.

The Manual’s order was entered in this case only after 
the district court reviewed a complete record showing the 
threat of actual abuse to the class action process. The 
threatened abuses in this case occurred during the pre­
class certification stage—the recognized stress point in this 
special litigation. More importantly, the threatened abuses 
occurred at a time when the rights of unrepresented ab­
sentees were particularly exposed to misrepresentations 
—during an ongoing conciliation process when absent 
class members were making important choices concerning 
their rights. As a result of the threatened abuses, the 
district court was required to enter a monitoring order 
to assure effective management of the proposed class and to 
protect the rights of the potential class members who had 
already begun to feel the pressures of competing interests 
for their favor.

II.
THE ORDER OF THE DISTRICT COURT MONI­

TORING COMMUNICATIONS WITH POTENTIAL 
CLASS MEMBERS IS CONSTITUTIONAL

A. F irst amendment values m ust be reconciled 
with the court’s duty to protect the fair and 
efficient administration of justice.

This Court has often been required to reconcile first 
amendment rights with other important constitutional 
interests. When the countervailing value to be reconciled 
has been the maintenance of a judicial system responsive 
to the needs of a free society, and to the protection of



10

the fair and efficient administration of justice, this Court 
and other American tribunals have traditionally regarded 
that value to be very important. Here, the competing values 
are: 1) the court’s authority to enter an order, recommend­
ed by some of the nation’s most experienced jurists and de­
signed to protect against specific abuses during the admin­
istration of a unique judicial process; and 2) the general­
ized first amendment concerns of parties and their counsel, 
who have submitted to the court’s jurisdiction.

The object of the order entered here was to permit the 
district court to manage this litigation at a particular 
stress point and to ensure that misleading information did 
not pass from parties and their attorneys to others directly 
affected by the litigation, who depend upon the district 
court for their protection. This Court has recognized there 
is an important governmental need in preventing misleading 
speech in the commercial area. In this case, the need to pre­
vent misleading speech is at least as important when the 
communication originates, in a very real sense, in the 
district court itself, particularly when those desiring to 
communicate are, at least to some degree, doing so as 
officers of the court. The district court had a legitimate 
constitutionally based concern in ensuring that this class 
action was conducted in a manner which not only avoided 
injustice but the appearance of injustice.

B. The order is not a prior restraint.
When reconciling competing constitutional values this 

Court has required a careful analysis of the various 
interests involved. The result of this analysis here is that 
the order did not constitute a prior restraint since it con­
tained a broad “exception” allowing free exercise of



11

speech without prior court approval. This “exception” 
allows any court imposed prohibition on speech to be 
constitutionally challenged by the one charged with viola­
tion of the order and for that reason the inquiry into the 
order’s validity cannot proceed on the basis of its assumed 
constitutional infirmity as a prior restraint.

C. The facts in this case support entry of the 
order based upon previously articulated stand­
ards.

Several standards have been articulated by which to 
judge the constitutionality of the present order. The Board 
of Editors of the Manual have taken the position that the 
very nature of the unique class action device creates 
sufficient justification for entry of the order. Some courts 
have required a showing of “reasonable probability” of 
prejudice to the fair administration of justice, while other 
courts have required a showing of “serious and imminent” 
danger before entering the order. The facts in this case 
established threats of abuse to the class action device 
sufficient to justify entry of the order based upon any of 
the standards articulated.

The very nature and intensity of the competing forces 
which occurred at the unusually delicate stage of this 
litigation demanded entry of the order. These forces, in 
fact, threatened the rights of absent parties and challenged 
the class management ability of the district court. As 
guardian of the absentees’ rights and as administrator of 
the unique class action process, the district court fulfilled 
its duty to actively monitor the actions of the parties— 
a duty imposed by the decisions of this Court.



12

ARGUMENT

INTRODUCTION
This case raises substantial and important questions 

concerning the administration of class actions in the fed­
eral courts and the power of district courts to prevent 
actual and potential abuses of the class action device under 
Rule 23 of the Federal Rules of Civil Procedure. In this 
case, the Court has limited its review to a class action 
procedural issue which will require the Court to balance 
the needs of the district court to manage the class action 
against the needs of Respondents and their attorneys to 
communicate with potential members of a proposed class, 
absent court approval.

The issues raised here have not yet been passed upon 
by this Court. In this case, the United States Court of 
Appeals for the Fifth Circuit invalidated a district court’s 
order which provided for minimal court supervision of 
communications with potential class members. The district 
court entered the order only after compiling a complete 
record showing the class action device was threatened 
by abuse.

Since the district court’s order was based directly upon 
the proposed order recommended by the Manual for 
Complex Litigation,x the Fifth Circuit’s opinion places a 
constitutional cloud on the work of the Board of Editors 
of the Federal Judicial Center. Moreover, since the 1

1. Manuel for Complex Litigation, reprinted in 1 (Pt. 2) J. 
M oore Federal P ractice Pt. II, § 1.41 (2d ed. 1980) [hereinafter 
cited as Manual]. The Manual also recommends adoption by the 
district courts of a local rule regarding communications with absent 
class members. See n.7, p. 17, infra.



13

Manual’s suggested rule and order have been adopted 
by numerous district courts across the nation, the Fifth 
Circuit’s decision has implications and importance which 
reach far beyond the facts of this case.2 Furthermore, the 
language of the Fifth Circuit’s opinion is in conflict with 
a decision of the United States Court of Appeals for the 
Second Circuit in Weight Watchers of Philadelphia, Inc. 
v. Weight Watchers International, Inc., 455 F.2d 770 
(2d Cir. 1972).

The order has been challenged on both constitutional 
and statutory grounds. Since this Court will not decide 
constitutional issues where a nonconstitutional ground will 
be dispositive, Douglas v. Seacoast Products, Inc., 431 
U.S. 265, 271-72 (1977); Hagans v. Lavine, 415 U.S. 
528, 547 n.12, 549 (1974), this brief will first discuss 
the appropriateness of the district court’s order under 
Rule 23, and then discuss the constitutionality of that 
order.3

2. The Manual’s Suggested Local Rule No. 7 has been adopted 
by: S.D. Fla. R. 19B; N.D. Fla. R. 17B; N.D. 111. (Civ.) R. 22; 
E.D. La. R. 2.12; D. Md. R. 20; S.D. Ohio R. 3.9.4; W.D. Pa. R. 
34; N.D. Tx. (unpublished); S.D. Tx. R. 6; W.D. Wash. (Civ.) 
R. 23(g); N.D. Ga. R. 221.2 and 221.3; M.D.N.C. R. 17(b)(6). 
Based upon the Fifth Circuit’s en banc decision in Bernard the fol­
lowing courts have withdrawn their local rule: S.D. Tx. R. 6; N.D. 
Fla. R. 17B; N.D. 111. R. 22.

3. This Court followed a similar method of analysis in United 
States v. Nixon, 418 U.S. 683 (1974), when it discussed the require­
ments of Fed. R. Crim. P. 17(c) before considering the constitutional 
questions.



14

I.
ENTRY OF THE ORDER WAS A PROPER EXER­

CISE OF THE DISTRICT COURT’S AUTHORITY 
UNDER RULE 23

A. Class actions are a special kind of litigation 
where the court must protect the interests of 
absent class members.

This Court has recognized “[t]here are special rules 
relating to class actions and, to that extent, they are a 
special kind of litigation.” Coopers & Lybrand v. Livesay, 
437 U.S. 463, 470 (1978). Many of the special rules 
governing this unique litigation are contained expressly 
in Rule 23 and relate to the district court’s authority to 
manage the class action. See Oppenheimer Fund, Inc. v. 
Sanders, 437 U.S. 340 (1978). Thus, under Rule 23 (d) 
the district court is granted broad authority to enter 
appropriate orders:

. . .  (2) requiring, for the protection of the members 
of the class or otherwise for the fair conduct of the 
action, that notice be given in such manner as the 
court may direct to some or all of the members of 
any step in the action . . .  (3) imposing conditions 
on the representative parties . . . (5) dealing with 
similar procedural matters.

Fed. R. Civ. P. 23(d).4

Recently, this Court said it was obvious “[t]hat there 
is a potential for misuse of the class action mechanisms.

4. The district court is required to manage the settlement of class 
action cases since Fed. R. Civ. P. 23(e) provides that a class action 
will not be dismissed or compromised without the approval of the 
court and notice to members of the class in such a manner as the 
court decides.



15

. . Deposit Guaranty National Bank, Jackson, Missis­
sippi v. Roper, 445 U.S. 326, 339 (1980). A review 
of the case law indicates that the “potential for mis­
use” has often matured into actual abuse of the class 
action device resulting in harmful effects on the rights of 
potential class members.5

The class management provisions of Rule 23(d) pro­
vide the court with “wide discretion” to create “several 
methods of safeguarding the interests of absent class mem­
bers,” 3B J. Moore Federal Practice f  23.70, at 23- 
479, 23-480 (2d ed. 1980), and are applicable to cases, 
such as this one, brought under Fed. R. Civ. P. 23(b) (2). 
Sperry Rand Corp. v. Larson, 554 F.2d 868 (8th Cir. 
1977); Sanders v. John Nuveen & Co., 463 F.2d 1075

5. These abuses include: calling meetings of actual or potential class 
members and making misrepresentations, Reed v. Sisters of Chanty 
of the Incarnate Word of Louisiana, Inc., 25 Fed. R. Serv. 2d 331 
(W.D. La. 1978); N.O.W. v. Minnesota Mining and Manufacturing 
Co., 18 Fair Empl. Prac. Cas. 1176 (D. Minn. 1977), appeal dismissed, 
578 F.2d 1384 (8th Cir. 1978); efforts to seek out people willing to 
have a class action instituted in their names as representatives of a 
class, Carlisle v. LTV  Electrosystems, Inc., 54 F.R.D. 237 (N.D. 
Tex. 1972); informal efforts to secure affidavits from members of the 
class which plaintiffs purported to represent, denying that the plaintiffs 
represented the affiants, Northern Acceptance Trust 1065 v. AMFAC, 
Inc., 51 F.R.D. 487 (D. Hawaii 1971); placing unauthorized news­
paper advertisements which had an adverse effect on parties, EEOC 
v. Red Arrow Corp., 8 Fair Empl. Prac. Cas. 621 (E.D. Mo. 1974); 
seeking to dismiss a class action allegation upon plaintiff’s individual 
compromise, Rothman v. Gould, 52 F.R.D. 494 (S.D. N.Y. 1971); 
conditioning franchise renewal on release of class claims, Hawkins v. 
Holiday Inns, Inc., [1978-1] Trade Cases f[ 61,838 (W.D. Tenn. 
1978); misleading an emergency judge into striking class allega­
tions which resulted in possible prejudice to the rights of proposed 
class members, Yaffe v. Detroit Steel Corp., 50 F.R.D. 481 (N.D. 
111. 1970); attempting solicitation of potential class members after 
denial of class motion, Weisman v. Darneille, 78 F.R.D. 671 (S.D. 
N.Y. 1978).



16

(7th C ir.), cert, denied, 490 U.S. 1009 (1972); Cranston 
v. Freeman, 290 F.Supp. 785 (D.N.Y. 1968), rev’d on 
other grounds sub nom. Cranston v. Hardin, 428 F.2d 
822 (2d Cir. 1970), cert, denied, 401 U.S. 949 (1971 ).6 
Under the provisions of Rule 23(d), the district court 
must actively protect absent class members since “[t]he 
judge is no longer [to be] a passive observer, allowing the 
initiative of the opposing attorneys to control the course 
of the litigation; he plays an active role. In a very real 
sense, he is the guardian of the interests of absentees.” 
Comment, Adequate Representation, Notice and the New 
Class Actions Rule: Effectuating Remedies Provided by 
the Securities Law, 116 U. Pa. L. Rev. 889, 898 (1968), 
quoted in 3B J. Moore, supra, f  23.70 at 23-480. In 
addition, the court’s direct participation is required in 
class proceedings since it is “manager of the case.” In re 
Air Crash Disaster at Florida Everglades, 549 F,2d 1006, 
1012 n.8 (5th Cir. 1977); see also Huff v. N. D. Cass 
Co., 485 F.2d 710, 713 (5th Cir. 1973).

Thus, under Rule 23(d) ( l ) - (4)  the court, as manager 
of the litigation, is required to enter appropriate orders 
for the protection of absent class members. The scope of 
these orders is “limited only by the use of sound judicial 
discretion,” 3B J. Moore, supra, f  23.75 at 23-492, and 
may be framed under Rule 23(d)(5)  to correct proced­
ural matters which may adversely affect the rights of absent 
class members. Consequently, when the rights of absentees 
are left unprotected by the class action mechanism, the 
district court, as manager of the class, is required to frame 
appropriate orders to protect those rights.

6. Class action claims under Title VII are Fed.R.Civ.P. 23(b)(2) 
actions, See Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 
1969); Jenkins v. United Gas Corp., 400 F.2d 28 (Sth Cir. 1968).



17

B. An order monitoring communications will in­
sure protection of absent class members.

Just last term this Court ruled it is a primary “responsi- 
bilit[y] of a district court to protect both the absent class 
and the integrity of the judicial process by monitoring 
the action of the parties before it.” Deposit Guaranty 
National Bank, Jackson, Mississippi v. Roper, supra, at 
331. To meet this responsibility, Rule 23(d) authorizes 
the district court to enter an order protecting absent class 
members by monitoring information flowing to them. 3B 
J. Moore, supra, f  23.75, at 23-499. The most widely 
accepted order for fairly and equitably monitoring the 
activity of class parties is that proposed by the Board of 
Editors of the Federal Judicial Center.7 See Manual, 
supra, at 225-228 for a text of the suggested order.8

The Manual’s order while designed to control some 
communications freely allows: (1) constitutionally pro­
tected communications with absent class members; (2) 
all communications approved by the court; (3) com­
munications between an attorney and his client or a pros­
pective client, who has on the initiative of the client or 
prospective client consulted with, employed or proposed 
to employ the attorney, or (4) communications occurring

7. The judges comprising the Board, after many years of judicial 
experience with class actions, were especially attuned to the abuse, 
both intentional and inadvertent, inherent in the class action device. 
To avoid the potential for abuse and to guard against unapproved 
conduct of the attorneys or parties, the Manual recommended adop­
tion by the district courts of a local rule. See Manual, supra, at 32.

8. The recommendations of the Manual, although not obligatory 
upon the courts, are important since “ [t]he Manual is a collection of 
suggested procedures for the handling of complex cases written by 
judges for judges after receiving the widest possible range of sugges­
tions and criticisms from the Bench and Bar.” Manual, supra, at xxvi.



18

in the regular course of business or in the performance of 
the duties of a public office or agency (such as the At­
torney General) which do not have the effect of soliciting 
representation by counsel, or misrepresenting the status, 
purposes or effect of the action and orders therein. Id.

The order is the product of the combined experience 
of the judges comprising the Board of Editors, who recog­
nized the impossibility of drafting an order which would 
cover every potential abuse.9 Consequently, the Manual’s 
order is drawn as narrowly as possible to accomplish 
its intended purposes and represents the best possible 
monitoring device available to protect absent class mem­
bers from misrepresentations during class action litiga­
tion.10 11 The Manual recommends that the district court 
not wait until actual abuses occur, but act promptly to 
prevent potential abuses by entry of the order in all class 
actions. Id. at 226.11

Protection of absent class member’s rights prior to 
class certification is particularly important and demands

9. The district court should not be required to match specific 
abuses with specific regulatory rules, see Waldo v. La.keshore Estates, 
Inc., 433 F.Supp. 782, 791 (E.D. La. 1977), since any attempt at 
prohibiting by itemizing each potential abuse would succumb to the 
ingenuity of those determined to wrongfully take advantage of the 
class action procedure. See Manual, supra, p. 3 (Cumm. Supp. 
1980-81).

10. One of the primary purposes of the Manual’s order is “to 
prevent misrepresentations of the status, purposes, and effects of the 
action.” Lupia v. Stella D ’Oro Biscuit Co., [1974-1] Trade Cases 
ft 75,046 (N.D. 111. 1972), appeal dismissed, (7th Cir. 1973), cert, 
denied, 417 U.S. 930 (1974).

11. “Further experience continues to teach that it is dangerous 
to await the occurrence of an abuse before trying to correct it. . . .” 
Manual, supra, p. 3 (Cumm. Supp. 1980-81).



19

the special attention of the trial judge. It is at this stage 
that the rights of absent class members are acutely ex­
posed to the effects of false or misleading information; 
a time when they are unrepresented by counsel. See 
Winfield v. St. Joe Paper Co., 20 Fair Empl. Prac. Cas. 
1093 (N.D. Fla. 1977).12

The ability to control misleading statements at the 
pre-certification stage takes on an even greater signifi­
cance, as in this case, where potential class members were 
considering accepting a back pay offer in a conciliation 
agreement making them ineligible for inclusion in the 
class. Misrepresentations received by this group during their 
deliberations could have had irreparable consequences.13

12. In the class action context, it appears that the attorney- 
client relationship between counsel for the namd plaintiffs and pur­
ported class members is created when the court certifies the class 
and designates the class representative and his counsel. Rental Car 
of New Hampshire, Inc. v. Westinghouse Electric Corp., 496 F. 
Supp. 373, 383 (D. Mass. 1980); Amos v. Board of School Directors 
of the City of Milwaukee, 408 F. Supp. 765, 774 (E.D. Wis. 1976), 
aff’d sub nom. Armstrong v. Bremen, 359 F.2d 625 (7th Cir. 1976), 
vacated, 433 U.S. 627 (1977). “The relationship between the repre­
sentative parties and their lawyer or lawyers is one of private contract; 
the relationship between the class counsel and the members of the 
class, apart from the representative parties, is one of court creation.” 
Id., at 775. The mere filing of a class action lawsuit does not mean 
that counsel for the named plaintiffs is counsel for the class; rather 
that relationship is a matter of judicial determination at the class 
certification stage. Alpine Pharmacy, Inc. v. Chas. Pfizer & Co., Inc., 
481 F.2d 1045 (2d Cir.), cert, denied, 414 U.S. 1092 (1973). Until 
the court designates an attorney as counsel for the class upon class 
certification, the absent class members are not represented by counsel 
and must look to the court to be the “guardian” of their rights. 
See Smith v. Josten’s American Yearbook, 78 F.R.D. 154, 168 (D. 
Kan. 1978), aff’d, 624 F.2d 125 (10th Cir. 1980). In this case there 
was no attorney-client relationship between counsel for the named 
plaintiffs and the proposed class because no class had been certified.

13. “When those communications are sent during the limited 
period in which class members may opt out of the class, or as here,



2 0

The dangers inherent in exposing absent class members 
to misrepresentations were explained in N.O.W. v, Min­
nesota Mining and Manufacturing Co., supra, at 1178- 
1179:

. . . [T]he court is convinced that it retains a com­
pelling interest in prohibiting unapproved communi­
cations to class members if those communications 
were to misrepresent the status or effect of the case 
presently before the court. Such misrepresentations 
would have an obvious potential for creating con­
fusion and for adversely affecting the administration 
of justice. If such communications were to be cloaked 
with an air of governmental authority, the potential 
for confusion would be increased, and there would 
arise not only the risk of subsequent disenchantment 
with the judicial process, but also the danger that 
individuals would be induced to act to their detri­
ment in reliance upon such misinformation.

Thus, the authority of the district court to manage the 
class must be maintained to prevent misrepresentations 
during the pre-class certification stage of the litigation.

If the Manual’s suggested order is ignored and un­
supervised communications with potential class members 
are allowed, parties and their attorneys will be able to 
send out notices inconsistent with those from the court, 
thereby usurping the exclusive authority of the trial court 
to issue or approve notices to the class:

in which they may accept a back pay offer pursuant to a conciliation 
agreement, any misleading statement may be irreparable.” Bernard 
v. Gulf Oil Co., S96 F.2d 1249, 1260 (5th Cir. 1979), rev’d in part, 
619 F.2d 459 (5th Cir. 1980) (en banc).



21

There is no provision in the Federal Rules for coun­
sels for a party, sua sponte, to notify class members 
or non-class members, formally or informally, of the 
pendency of a lawsuit. In an action such as this one 
arising under subsection (b)(2)  of Rule 23 of the 
Federal Rules of Civil Procedure, notice to class 
members is governed by the provisions of Rule 23 
(d)(2) .  Rule 23(d)(2)  vests the court with the sole 
discretionary authority to issue notice. As Rule 23 
(d)(2)  states, the discretionary notice is for the 
purpose of assuring fair conduct of an action or 
protecting class members—it is not for undesirable 
solicitation of claims. (Citations omitted.)

Lewis v. Bloomsburg Mills, Inc., 21 Fed. R. Serv. 2d 
748, 750 (D.S.C. 1976). See also Erhardt v. Prudential 
Group, Inc., 629 F.2d 843, 846 (2d Cir. 1980); Weisman 
v. Darneille, supra, at 674.

If a monitoring order is not entered, the district court 
cannot effectively control parties or their attorneys from 
sending unauthorized notices to absent class members. 
This problem was demonstrated in Erhardt v. Prudential 
Group Inc., supra, where the Second Circuit held that 
the offending party was not guilty of contempt since no 
order was entered limiting communications.14 So that 
the clear objectives of Rule 23(d) are not frustrated, the 
authority of the trial court to monitor communications 
should be upheld.15

14. The Second Circuit recommended that an order be entered 
limiting communications at the time the district court sends notices 
to class members. Erhardt v. Prudential Group, supra, at 846.

15. If after the monitoring order is entered, the court fails to 
allow critical communications to reach absent class members, the 
appellate courts can correct the error upon final appeal. See Oswald 
v. McGarr, 620 F.2d 1190 (7th Cir. 1980), where the court held 
such orders were non-appealable interlocutory orders and “any 
abuse of discretion may be corrected after final judgment. . . .”



2 2

C. The monitoring order entered here is appro­
priate.

Although the Manual was used by the district court 
in framing the present order, this case does not involve 
the unsupported application of the Manual’s recommen­
dations. In this case, the district court acted only after 
compiling a complete record showing the class action 
process was threatened by abuse.16 * 18

The threatened abuses in this case took place during 
the pre-class certification stage; the recognized stress 
point in this special kind of litigation. More importantly, 
the threatened abuses occurred at a time when the rights 
of unrepresented absentees were particularly exposed to 
misrepresentations; during an ongoing conciliation process 
when absent class members were making important choices 
concerning their rights.

In this case the facts supporting entry of the order were 
established in affidavits filed by the Respondents’ at­
torneys. In these affidavits two attorneys admitted at­
tending a meeting of potential class members called by 
the named plaintiffs and admitted discussing the issues

Id. at 1195. Accord, Weightwatchers of Philadelphia, Inc. v. Weight- 
watchers International, Inc., supra, at 774. Apparently, the Fifth Circuit 
is in conflict with this approach, for it has granted writs of mandamus 
and dissolved orders limiting communications in two separate cases 
since deciding Bernard, supra, (en banc). See In re Lilia Ann Norton, 
622 F.2d 917 (5th Cir. 1980); In re Gilley, 30 Fed. R. Serv. 2d 
139 (5th Cir. 1980). This Court has rejected interlocutory ap­
peals from orders granting or denying class status since “ [t]he 
potential waste of judicial resources is plain.” Coopers & Lybrand 
v. Livesay, supra, at 473.

16. This record included numerous briefs from the parties (J.A.
22, 47, 80, 92, 105), three affidavits from the Respondents’ attorneys
(J.A. 111, 115, 118), an affidavit from the EEOC (J.A. 71) and 
the OEO (J.A. 76), and a hearing on June 11, 1976 (J.A. 1, 3).



23

in the case, answering questions from the audience, and 
explaining the administrative and legal problems inherent 
in the litigation. (J.A. 115, 116, 118). Thus, the plain­
tiffs created and their attorneys participated in the 
type of activity which the Manual’s recommended order 
was designed to control.17 In addition to the statements 
acknowledged in affidavits, Gulf learned that Respond­
ents’ attorneys, during this meeting, also advised the 
potential class members not to sign conciliation releases 
and, if they had, to return the checks since they could 
recover double that amount through litigation. (J.A. 23, 
24).18

Based upon these facts, the district court was required 
to enter the monitoring order to assure effective manage­
ment of the class and to protect the rights of the potential 
class members who had already begun to feel the pressure 
of competing interests for their favor. Additionally, the 
order was required since numerous courts have recom­
mended, indeed some have insisted upon, the trial court’s 
supervision of individual settlement offers during a pend­

17. See, e.g., N.O.W. v. Minnesota Mining and Manufacturing 
Co., supra, at 1179, where the court stated: “ [I]t is the considered 
opinion of the court that any attempt to conduct and manage such 
litigation in the context of mass meetings conducted by attorneys 
for the parties for the purpose of discussing the status of this litiga­
tion would end in chaos.”

18. This information was represented to the district court in 
Petitioner’s Memorandum filed on May 27, 1976. (J.A. 22). Although 
attorneys for Respondents deny advising potential class members 
not to accept the offer under the conciliation agreement, counsel for 
Respondents make it clear in a Memorandum filed after the meeting 
with potential class members that they considered the relief afforded 
by the conciliation agreement to be inadequate. (J.A. 108, 109). 
The district court had the benefit of this memorandum as well as 
affidavits of Respondents’ attorneys, Mr. Goldstein, Mr. Thibodeaux 
and Ms. Morrison (J.A. I l l ,  115, 118) prior to entering its order on 
June 22, 1976. (J.A. 124).



2 4

ing class action. S e e  I n  r e  G e n e r a l  M o t o r s  C o r p .  E n g in e  

I n te r c h a n g e  L i t ig a t i o n , 594 F.2d 1106, 1139-1140 (7th 
Cir.), c e r t ,  d e n ie d , 444 U.S. 870 (1979); A m e r ic a n  

F in a n c e  S y s te m ,  I n c . v. H a r lo w , 65 F.R.D. 572, 576 
(D. Md. 1974). Supervision was particularly critical 
in the present case “to exercise control over the com­
munications of all parties to the suit so that undue 
influence [was] prevented.” C h r a p l iw y  v. U n ir o y a l ,  I n c .,  
71 F.R.D. 461, 464 (N.D. Ind. 1976); Dole, T h e  S e t t le ­

m e n t  o f  C la s s  A c t i o n s  f o r  D a m a g e s , 71 Colum. L. Rev. 
971, 995-997 (1971); D e v e lo p m e n ts  in  th e  L a w — C la s s  
A c t io n s ,  89-B Harv. L. Rev. 1318, 1549-1550, 1601-1604 
(1976).

By entering the order, the district court sought to 
achieve the objectives of Title VII (J.A. 126), which 
were articulated clearly by Justice Powell in A le x a n d e r  

v. G a r d n e r - D e n v e r  C o ., 415 U.S. 36, 44 (1974):

Cooperation and voluntary compliance were selected 
as the preferred means for achieving [the elimination 
of unlawful employment discrimination]. To this 
end, Congress created the Equal Employment Op­
portunity Commission and established a procedure 
whereby State and local equal employment oppor­
tunity agencies, as well as the Commission, would 
have an opportunity to settle disputes through con­
ference, conciliation, and persuasion before the ag­
grieved party was permitted to file a lawsuit.19

As Justice Powell recognized, Congress charged the EEOC 
with meeting the objectives of Title VII. In this case, it 
was the EEOC (and OEO) who urged (together with

19. “ [EJfforts should be made to resolve these employment rights 
by conciliation both before and after court action.” Dent v. St. Louis- 
San Francisco Railway, 406 F.2d 399, 402 (5th Cir. 1969), cert.



25

Gulf) the resumption of the suspended conciliation ef­
forts20 in an affidavit (J.A. 71, 76) filed with Petitioner’s 
memorandum. (J.A. 47).

After assuring itself that the conciliation agreement 
provided complete relief (J.A. 71-80), the district court 
granted the request to resume the conciliation process by 
establishing a detailed procedure under which judicial 
supervision of individual settlements would proceed fairly, 
equitably and without undue influence.21

When all the facts supporting entry of the order in this 
case22 are weighed against the needs of Respondents and

denied, 425 U.S. 944 (1971). See also, United States v. Allegheny- 
Ludlurn Industries, Inc., 517 F.2d 826, 846-850 (5th Cir. 1975), 
cert, denied, 425 U.S. 944 (1976).

20. When served with the complaint, Gulf voluntarily suspended 
distribution of the back pay awards (J.A. 43, 74, 75) since many 
courts had held an action “must be assumed to be a class action” 
for purposes of dismissal or compromise under Rule 23(e) unless 
and until a contrary determination is made under 23(c)(1). Ameri­
can Finance System, Inc. v. Harlow, supra, quoting Philadelphia 
Electric Co. v. Anaconda American Brass Co., 42 F.R.D. 324, 326 
(E.D. Pa. 1967).

21. The district court ordered the clerk of the court to issue 
a notice informing both current and former employees eligible for 
benefits under the conciliation agreement that they had an absolute 
right under Title VII to reject the terms of the conciliation agree­
ment negotiated between the government and Gulf. (J.A. 104). See 
United States v. Allegheny-Ludlum Industries, Inc., supra, a t 848 
n.26. The court’s notice made sure that these potential class members 
were fully apprised of the lawsuit, the conciliation agreement, and 
all relevant facts concerning their rights. (J.A. 103, 104). By allow­
ing each potential class member entitled to relief under the concilia­
tion agreement 45 days in which to make his decision, the court 
afforded them “ample opportunity to reflect and seek advice.” See 
Rodgers v. United States Steel Corp., 70 F.R.D. 639, 647 (W.D. 
Pa. 1976). This allowed each potential class member to knowingly 
and voluntarily decide whether or not to exercise his rights under 
Title VII. See Alexander v. Gardner-Denver Co., supra, at 52 n.15.

22. See n.16, p. 22, infra.



26

their attorneys for unsupervised communication with 
potential class members during the pre-certification stage 
of the litigation,23 it is clear that the district court did not 
abuse its discretion.

II.
THE ORDER OF THE DISTRICT COURT MONI­

TORING COMMUNICATIONS WITH POTENTIAL 
CLASS MEMBERS IS CONSTITUTIONAL

Having demonstrated that the monitoring order was an 
appropriate exercise of the district court’s authority under 
Rule 23, the order will now be examined under the require­
ments of the first amendment.24

23. While Respondents contend they needed to communicate with 
absentees to conduct discovery (J.A. 113, 116, 119), no such dis­
covery under Fed. R. Civ. P. 26-37 was ever undertaken by them. 
The order did not prevent discovery, but rather it allowed “proper 
processing of the case,” Manual, supra, at 34, and the order could 
have been “altered or amended” where justice so required. 3B J. 
Moore, supra, at 23-501. See, e.g., N.OAV. v. Minnesota Mining and 
Manufacturing Co., supra, at 1178 (order interpreted to allow witness 
interviews and free use of discovery rules 26-37); Bottino v. Mc­
Donald’s Corp., [1973-2] Trade Cases f  74,810 (S.D. Fla. 1973) 
(local rule modified to allow discovery for preparation of position on 
class issues); American Finance Systems, Inc. v. Harlow, supra, 
(local rule held not prohibiting offers of individual settlements with 
court’s supervision); Norris v. Colonial Commercial Corp., 77 F.R.D. 
672 (S.D. Ohio 1977) (order allowed solicitation of funds with court 
approval); EEOC v. Singer Controls Co. of America, 80 F.R.D. 
76 (N.D. Ohio 1978) (order modified to allow communications likely 
to develop probative and relevant data).

24. When orders such as this have caused delay in judicial 
proceedings and resulted in confusion among the lower courts, 
“ [i]t is all the more important, therefore, that this Court identify 
. . . the constitutional standard by which they are to judge . . . and 
the minimal procedure by which this standard is to be applied.” 
Gannett Co. v. DePasquale, 443 U.S. 368, 398 (1979) (Powell, 
J., concurring).



27

A, First amendment values must be reconciled 
with the court’s duty to protect the fair and 
efficient adm inistration of justice.

There can be no doubt that first amendment concerns 
have a special place in our hierarchy of constitutional 
values. Murdock v. Pennsylvania, 319 U.S. 105, 115 
(1943). Indeed, the constitutional value at issue here is 
“. . . the indispensable condition, of nearly every other 
form of freedom.” P a lk o  v .  C o n n e c t ic u t , 302 U.S. 319, 
327 (1937) (Cardozo, J.). But as this Court has regu­
larly acknowledged, even first amendment rights must 
be reconciled with other important constitutional interests. 
S e e , e .g . ,  B u c k le y  v. V a le o , 424 U.S. 1, 25 (1976); P e l l  
v. P r o c u n ie r , 417 U.S. 817, 822-828 (1974); K o n ig s b e r g  

v. S ta te  B a r  o f  C a l if o r n ia , 366 U.S. 36, 49-51 (1961).
When the countervailing value to be reconciled has 

been the maintenance of a judicial system responsive to 
the needs of a free society, and to the protection of the 
fair and efficient administration of justice, this Court and 
other American tribunals have traditionally regarded that 
value to be most important.25 While our political system is

25. Thus, picketing may constitutionally be prohibited from 
areas around the courthouse, see Cox v. Louisiana, 379 U.S. 559 
(1965); pre-trial communications by defendants may be limited, 
United States v. Tijerina, 412 F.2d 661 (10th Cir.), cert, denied, 
396 U.S. 990 (1969); the press may be required to respond to 
grand jury subpoenas and to answer questions, Branzburg v. Hayes, 
40S U.S. 665 (1972); and the press may be denied access to pre­
trial matters, Gannett Co. v. DePasquale, supra. Furthermore, this 
Court has suggested that orders be entered limiting pre-trial com­
munications to protect the rights of parties, Sheppard v. Maxwell, 
384 U.S. 333, 361 (1966); Estes v. Texas, 381 U.S. 532 (1965), 
noting that restrictions placed upon attorneys and parties are less 
drastic than those placed on the press. Sheppard, supra, at 359; 
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 564 n.8 (1976); 
id. at 601, n.27, (Brennan, J., concurring).



28

based on the proposition that “the best test of truth” may 
be “the power of the thought to get itself accepted in the 
competition of the market . . . A b r a m s  v. U n ite d  S ta te s ,  
250 U.S. 616, 630 (1919) (Holmes, J., dissenting), our 
judicial system is based on the proposition that “the con­
clusions to be reached in a case will be induced only by 
evidence and argument in open court, and not by any 
outside influence, whether of private talk or public print.” 
P a t te r s o n  v. C o lo r a d o , 205 U.S. 454, 462 (1907) 
(Holmes, J .) .26 Thus, in our system of justice, the inher­
ent power of the court to protect the administration of 
justice is undisputed. S e e  S h e p p a r d  v. M a x w e l l ,  s u p r a ;  
P e n n e k a m p  v. F lo r id a , 328 U.S. 331, 347 (1946); C h i­
cago Council of Lawyers v. Bauer, 522 F.2d 242, 248 
(7th Cir. 1975), cert, denied, A ll  U.S. 912 (1976).27 
Rooted in common law tradition, s e e  B r id g e s  v .  C a l i f o r ­

n ia , 314 U.S. 252, 260 (1941), this power undoubtedly 
comprehends protection of the court itself, as well as 
parties before it. Pennekamp v. Florida, supra, at 347; 
Z a r a te  v. Y o u n g lo v e , 86 F.R.D. 80 (C.D. Cal. 1980).28

Therefore, the competing constitutional values here are: 
(1) the court’s authority to enter an order recommended 
by the nation’s most experienced jurists and designed to

26. See, e.g., 40 U.S.C. § 13j which prohibits “loud” or “threaten­
ing” language in the Supreme Court building or on its grounds.

27. This Court has adopted a rule limiting under certain cir­
cumstances communications of its law clerks to insure the proper 
administration of justice. Sup. Ct. R, 7, Prohibition Against Practice.

28. This power extends to control attorneys’ behavior since it is 
recognized “that the primary responsibility for controlling the con­
duct of lawyers practicing before the district court lies with that 
court. . . .” Gas-A-Tron of Arizona v. Union Oil Co. of California, 
534 F.2d 1322, 1325 (9th Cir.), cert, denied, 429 U.S. 861 (1976). 
In fact, the district court’s power extends to control attorneys’ con­
duct outside the courtroom. United States v. Hvass, 355 U.S. 570 
(1958).



29

insure against specific abuses of a special judicial process; 
and (2) the generalized first amendment concerns29 of 
the parties before the court, who have submitted to the 
court’s jurisdiction.

Part I of this argument demonstrated that the order 
here was required to permit the district court to manage 
effectively this litigation at a particular stress point and 
to insure misleading information did not pass from parties 
and their counsel to others directly affected by the litiga­
tion who depend upon the district court for their protec­
tion.30 In the commercial area, this Court has traditionally 
recognized a strong governmental interest in preventing 
false and misleading speech. S e e  V ir g in ia  S ta te  B o a r d  o f  
P h a r m a c y  v. V ir g in ia  C i t i z e n s  C o n s u m e r  C o u n c il , 425 U.S. 
748, 758-759 (1976); F r ie d m a n  v. R o g e r s , 440 U.S. 1

29. One of these concerns is that the monitoring order uncon­
stitutionally interfered with Respondents’ associational rights under 
the first amendment by preventing solicitation. It is true this Court 
has allowed solicitation when undertaken to express political beliefs and 
associational freedoms. In re Primus, 436 U.S. 412 (1978). The Primus 
case relied heavily for its support on NAACP v. Button, 371 U.S. 415 
(1963), a case which allowed attorneys to solicit for the purpose 
of furthering the civil rights objectives of the organization and its 
members. Button has been interpreted by this Court as establishing 
the principle that “collective activity undertaken to obtain meaning­
ful access to the courts is a fundamental right within the protection 
of the First Amendment.” United Transportation Union v. State Bar 
of Michigan, 401 U.S. 576, 585 (1971). See also Bates v. State 
Bar of Arizona, 433 U.S. 350, 376 n.32 (1977). The order here 
did not interfere with any constitutional right of access to the courts 
since the order was entered during ongoing litigation to manage a 
complicated class action case that had begun to feel the pressures 
of abuse.

30. In restricting outside influences, the courts have recognized 
that the right to a fair trial both in civil and criminal cases is one 
of our most cherished values and that a trial judge should “have 
the authority to adopt reasonable measures to avoid injury to the 
parties by reason of prejudicial or inflammatory publicity.” See 
CBS v. Young, 522 F.2d 234, 241 (6th Cir. 1975).



30

(1979).31 How much stronger should that concern be 
when the communication originates, in a very real sense, 
in the district court itself,32 and when those desiring to 
communicate the speech are, at least to some degree, 
doing so as officers of the court?33 S e e  G o ld f a r b  v. V ir ­

g in ia  S ta te  B a r , 421 U.S. 773, 792 (1975). This ques­
tion was answered to a great extent in U n ite d  S ta te s  C iv i l  
S e r v ic e  C o m m s is io n  v. N a t io n a l  A s s ’n  o f  L e t t e r  C a r r ie r s ,  

413 U.S. 548 (1973), where this Court sustained restric­
tions on the freedom of political expression of govern­
ment employees. In doing so, it noted that “the govern­
ment has an interest in regulating the conduct and ‘the 
speech of its employees that differ[s] significantly from 
those it possesses in connection with regulation of the 
speech of the citizenry in general’.” Id. at 564. Similarly,

31. “Neither the intentional lie nor the careless error materially 
advances society’s interest in ‘uninhibited, robust, and wide open’ 
debate. . . .” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), 
quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964).

32. In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), 
this Court emphasized that the fiduciary role of those who sought 
to communicate on the public air medium permitted the imposition 
on speech of restrictions which otherwise would be impermissible. 
Those who use the medium of their role in federal litigation as a 
method of communication can certainly be held to the same obliga­
tion.

33. “As officers of the court, court personnel and attorneys have 
a fiduciary responsibility not to engage in public debate that will 
redound to the detriment of the accused or that will obstruct the 
fair administration of justice.” Nebraska Press Ass’n v. Stuart, supra, 
at 601, n.27 (Brennan, J., concurring). The same rationale must 
apply to parties since having submitted to the jurisdiction of the 
court, they have implicitly agreed to comply with the court’s attempt 
to administer justice properly. Cf. Snepp v. United States, 444 U.S. 
507 (1980). Absent class members have a right to expect protection 
by the court and, in absence of this protection, this Court has granted 
them special rights to protect themselves. See United Airlines, Inc. v. 
McDonald, 432 U.S. 385 (1977) (where this Court said the district 
court may have a responsibility to allow an absent class member to 
intervene to appeal the denial of class certification).



31

in this case, the district court has an interest, indeed an 
obligation, to monitor the conduct of the attorneys and of 
the parties who are conducting litigation before the court. 
As in the case of the statute in L e t t e r  C a r r ie r s , the order 
here discriminates “against no racial, ethnic, or religious 
minorities. Nor [does it] seek to control political opinions 
or beliefs. . . I d .  at 564. In L e t t e r  C a r r ie r s , the Court 
also ruled “that it is not only important that the Govern­
ment and its employees in fact avoid practicing political 
justice, but it is also critical that they appear to the public 
to be avoiding it, if confidence in the system of represen­
tative government is not to be eroded to a disastrous 
extent.” I d . at 565. Similarly, the district court here had a 
legitimate constitutionally based concern in ensuring that 
this class action was conducted in a manner which not 
only avoided injustice but the appearance of injustice.

B. The order entered in this case is not a prior 
restraint.

In reconciling the competing constitutional values of 
freedom of speech and fairness to the litigant on the one 
hand and the effective administration of justice in the 
federal judicial system on the other, there is a great temp­
tation to “pigeonhole” this order into one of the classical 
modes of first amendment analysis. First amendment 
questions should not be analyzed by forcing them into 
rigid preconceived categories. On the contrary, this Court 
has required a careful balancing of the competing con­
stitutional interests. S e e , e .g . ,  S m ith  v .  D a i ly  M a i l  P u b ­
l is h in g  C o . , 443 U.S. 97 (1979). Thus, while it 
would not automatically be fatal, T im e s  F ilm  C o r p . v. 
C h ic a g o , 365 U.S. 43, 47-49 (1961), affixing the “prior 
restraint” label would expedite reaching a pre-packaged 
result since such a label carries with it a “heavy presump­



32

tion” against its validity, Nebraska Press Ass’n v. Stuart, 
A ll  U.S. 539, 545 (1976), citing New York Times Co. v. 
United States, 403 U.S. 713, 714 (1971). Yet, such an 
approach would hardly recognize the careful function­
al analysis which Justice Frankfurter emphasized was 
so important if the result is to reflect a true reconcili­
ation of competing constitutional concerns. Kingsley 
Books, Inc. v. Brown, 354 U.S. 436, 441 (1957). 
When the approach suggested by Justice Frankfurter 
is followed, this order is not a prior restraint of first 
amendment rights. The order here neither placed an “ab­
solute ban on a c c e s s Gannett Co. v. DePasquale, supra, 
at 393, nor “restrained publication of, or comment upon, 
information, . . Id. at 411 (Blackmun, J., concurring 
in part and dissenting in part), for it allowed free exercise 
of speech without prior court approval. Moreover, the 
order operated in an even-handed way on all parties34 35 
and was not aimed at any particular group or ideology.85

In examining the present order, it becomes immediately 
apparent that this is an especially inappropriate case in 
which to rely upon the “talismanic test” of “prior re­
straint,” Kingsley Books, Inc. v. Brown, supra, at 441, 
since under the order in question a broad “exception” 
exists allowing all constitutionally protected communica­
tions without prior approval of the district court.

This exception, as a practical matter, limits severely the
scope of the information subject to prior scrutiny. Under

34. The order did allow resumption of the conciliation process 
under the court’s supervision. (J.A. 125).

35. Cf. United States Civil Service Commission v. National Ass’n 
of Letter Carriers, supra, at 564 where this Court noted “ [t]he 
restrictions so far imposed . . .  are not aimed at particular parties, 
groups, or points of view, but apply equally to all partisan activities 
of the type described.”



33

this exception, all expressions assertedly protected by the 
first amendment may be made by the parties or their 
counsel free of prior restraint. See Waldo v. Lakeshore 
Estates, Inc., supra, at 789. Indeed, the exception is pre­
served in the instant order even though, for example, the 
party or attorney may assert the constitutional right to 
solicit legal representation of potential class members. 
[An activity specifically prohibited by f  2 of the order 
(J.A. 124).] In a contempt proceeding to punish such 
solicitations, the test would be the applicable constitu­
tional test for solicitation in effect at the time the viola­
tion is charged. Presently, this would require an analysis 
by the court of whether the solicitation was commercial, 
under the standards of Ohralik v. Ohio State Bar Ass’n, 
436 U.S. 447 (1978) or whether the solicitation was a 
form of political expression under the standard of In re 
P r im u s ,  s u p r a . Thus, the order’s exception allows any 
court imposed prohibition on speech to be constitution­
ally challenged by the one charged with its violation36 
and then only after all the safeguards of the criminal 
justice system are fulfilled.37 For that reason the inquiry

36. See United States v. Ryan, 402 U.S. 530 (1971) where a 
party was served with a subpoena and upon appeal of the denial 
to quash, this Court held the party must either obey the subpoena 
or refuse to do so and contest its validity during the contempt pro­
ceeding. Accord, Cohbledick v. United States, 309 U.S. 323 (1940); 
Thomas v. Collins, 323 U.S. 516 (1945); Union Tool Co. v. Wilson, 
259 U.S. 107, 110-111 (1922). See also In re Ilalkin, 598 F.2d 
176, 199 (D.D.C. 1979); Chicago Council of Lawyers v. Bauer, 
supra. Contra, United States v. Dickinson, 465 F.2d 496 (5th Cir. 
1972), cert, denied, 414 U.S. 979 (1973). Walker v. Birmingham, 
388 U.S. 307 (1967), was distinguished in Ryan on the basis that 
the party charged with contempt did not avail himself of earlier 
review of the underlying order. United States v. Ryan, supra, at 532 
n.4.

37. Violations of the order would be punished by criminal contempt 
since the objective would be to vindicate the authority of the court. See 
Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911),



34

into the order’s validity cannot proceed on the basis of 
its assumed constitutional infirmity as a “prior restraint.” 
S e e  W a ld o  v .  L a k e s h o r e  E s ta te s ,  I n c .,  s u p r a  at 789; 
c f . V a n c e  v. U n iv e r s a l  A m u s e m e n t  C o ., 445 U.S. 308, 320 
(1980) (White, J., dissenting).

In addition, the order does not unduly “chill” first 
amendment rights since the one charged with its violation 
can challenge the constitutionality of any prohibition on 
speech during appeal of the contempt conviction. S e e  

U n ite d  S ta te s  v .  R y a n ,  s u p r a , discussed in n.36, in fra .

C. The facts in this case support entry of the 
order based on any of the previously articu­
lated standards.

Having shown the “self-wielding sword” of “prior re­
straint”88 to be a particularly inappropriate standard by 
which to judge the order, this Court must articulate the 
governing standard for all district courts faced with the 
reconciliation of constitutional values placed in competing *

where this Court said: “ [i]f it is for civil contempt the punishment 
is remedial, and for the benefit of the complainant. But if it is for 
criminal contempt the sentence is punitive, to vindicate the authority 
of the court.” See also Shillitani v. United States, 384 U.S. 364, 
370 (1966). When charged with contempt a party is entitled to the 
notice requirements of Fed. R. Crim. P. 42(b); to counsel, In re 
Oliver, 333 U.S. 257, 275 (1948); to trial by jury in serious cases, 
Bloom v. Illinois, 391 U.S. 194, 211 (1968); and to have the 
charges proven beyond a reasonable doubt. Michaelson v. United 
States, 266 U.S. 42, 66 (1924). Further, there must be proof of 
criminal intent to violate the order of the court. United States v. 
Marx, 553 F.2d 874, 876 (4th Cir. 1977). Whether a criminal 
contempt is “serious” depends on the size of the fine and the length 
of the incarceration. In Cheff v. Schnackenberg, 384 U.S. 373 (1966), 
the Court held that imprisonment for a period of six months for 
criminal contempt was punishment for a petty offense and therefore, 
no jury trial was required.

38. Kingsley Books, Inc. v. Brown, supra at 441.



35

roles by entry of the order. Several standards have been 
suggested in earlier cases and by the Board of Editors 
of the Manual.

The Board of Editors, on the basis of their broad ex­
perience in the administration of justice in the class action 
context, have taken the position that the very nature of 
the unique class action device creates sufficient justifica­
tion for entry of the order.39 Manual, supra. The 
Board of Editors rejected the requirement that a 
“real” or “set” abuse of the policies behind Rule 23 
must occur before a court could enter their proposed 
order. Id. It took this position because the types of com­
munication which hold the potential for abuse are so 
numerous and unpredictable they defy “exhaustive defi­
nitions.” Id. See Waldo v. Lakeshore Estates, Inc., supra,

39. Even if this Court chooses to articulate a more exacting 
standard for the entry of such an order, the observations of the 
editors of the Manual are nevertheless very relevant with respect 
to any contention that the order is overbroad or vague. With 
respect to overbreadth, this Court noted in Broadrick v. Okla­
homa, 413 U.S. 601 (1973), that “ [application of the over­
breadth doctrine . . .  is, manifestly, strong medicine” and ought to 
be “employed by the court sparingly and only as a last resort.” 
Id. at 613. Here, the order is not “directed at particular groups 
or viewpoints,” id. a t 616, but seeks to regulate, “in an even-handed 
and neutral manner,” id., the conduct of those engaged in litigation 
before the court. I t describes the forbidden conduct as precisely and 
as narrowly as the nature of the litigation situation permits. As this 
Court noted in Broadrick, “particularly where conduct and not 
merely speech is involved . . . the overbreadth of a statute must not 
only be real, but substantial as well, judged in relation to the 
statutes’ plainly legitimate sweep.” Id. a t 615. With respect to 
vagueness, the order in question does not require attorneys in civil 
litigation or clients acting under their advice to “guess at its mean­
ing,” id. at 607, quoting Connally v. General Construction Co., 
269 U.S. 385, 391 (1926). The order only prohibits “easily identi­
fiable and constitutionally prescribable” conduct. United States Civil 
Service Commission v. National Ass’n of Letter Carriers, supra, 
at 581.



36

at 789-791. The Board of Editors recommended the pro­
posed order not be changed, even though some commen­
tators and courts have indicated their dissatisfaction. 
M a n u a l ,  s u p r a , (Cumm. Supp.).40

On the other hand, some courts have required a show­
ing of “reasonable probability” of prejudice to the fair 
administration of justice before restrictive orders could 
be entered. U n i te d  S ta te s  v .  T i je r in a , 412 F.2d 661, 666- 
667 (10th Cir.), c e r t ,  d e n ie d , 396 U.S. 990 (1969) ;41 
S e e  a ls o  H ir s c h k o p  v . S n e a d , 594 F.2d 356 (4th Cir. 
1979); Y o u n g e r  v. S m ith , 30 Cal. App. 3d 138; 106 
Cal. Rptr. 225 (Ct. App. 1973). Still other courts would 
require a showing of “serious and imminent” danger to 
the administration of justice before entering the order. 
S e e  C h ic a g o  C o u n c i l  o f  L a w y e r s  v .  B a u e r , s u p r a ;  R o d g e r s  
v . U n i te d  S ta te s  S te e l  C o r p . , 536 F.2d 1001 (3d Cir. 
1976).

The facts in this case established threats of abuse to 
the class action device sufficient to justify entry of the 
order based upon any of the standards articulated. The 
very nature and intensity of the competing forces which

40. See n .ll ,  p. 18, infra.
41. The court in Tijerina adopted the “reasonable likelihood” 

standard and specifically rejected the application of the “clear and 
present danger test” raised in Bridges v. California, 314 U.S. 2S2 
(1941) and applied in Pennekamp v. Florida, 328 U.S. 331 (1946); 
Craig v. Harney, 331 U.S. 367 (1947); and Wood v. Georgia, 370 
U.S. 375 (1962). In so doing, the court noted that none of the 
above decisions dealt with a situation where a contempt arose from 
the violation of an order; rather, all these cases concerned extra- 
judicial statements which, in the absence of a prohibitive order, 
were said to obstruct the administration of justice. United States 
v. Tijerina, supra, at 666. It was recognized that “ [t]he Supreme 
Court has never said that a clear and present danger to the right 
of a fair trial must exist before a trial court can forbid extrajudicial 
statements about the trial.” Id. See also Sheppard v. Maxwell, supra, 
at 363.



37

occurred at the unusually delicate stage of this litigation 
demanded entry of the order. These forces, in fact, 
threatened the rights of potential class members and chal­
lenged the class management ability of the district court. 
As guardian of the absentees’ rights and as administrator 
of the unique class action process, the district court ful­
filled its duty to actively monitor the actions of the parties 
—a duty imposed by the decisions of this Court.

CONCLUSION
Therefore, the decision of the United States Court of 

Appeals for the Fifth Circuit invalidating the order moni­
toring communications should be reversed, and the district 
court’s order should be reinstated.

Respectfully submitted,

Wm . G. D uck

Susan R. Sew ell 
P. O. Box 3725 
Houston, Texas 77001 
(713) 754-2953
A t to r n e y s  f o r  P e t i t io n e r  
G U L F  O I L  C O M P A N Y

Carl A. Parker 
449 Stadium Road 
Port Arthur, Texas 77640 
A t to r n e y  f o r  P e t i t io n e r s

I N T E R N A T I O N A L  A N D  
L O C A L  U N I O N S



38

CERTIFICATE OF SERVICE

I hereby certify that on January 22, 1981, a true and 
correct copy of the foregoing Brief for the Petitioners and 
Joint Appendix were deposited in the United States Post 
Office with first class postage prepaid and properly ad­
dressed to the following parties to this action and others 
required to be served:

Jack Greenberg 
Patrick O. Patterson 
10 Columbus Circle 
Suite 2030
New York, New York 10019
Carl A. Parker
449 Stadium Road
Port Arthur, Texas 77640
Leroy D. Clark
Equal Employment Opportunity 

Commission 
2401 E Street N.W.
Washington, D.C. 20506
Drew S. Days, III 
Department of Justice 
Washington, D.C. 20530
Solicitor General 
Department of Justice 
Washington, D.C. 20530

I also certify that all parties required to be served have 
been served.

Wm . G. Duck