Eisen v. Carlisle & Jacquelin Motion of Respondents for Leave to File Supplemental Brief and Supplemental Brief

    Gjfwrt nf tlyr Inttpft States
O C T O B E R  T E R M , 1973

—
No. 73-203

Morton E isen , on Behalf of Himself and All Other Pur­
chasers and Sellers of “ Odd-Lots” on the New York Stock 
Exchange Similarly Situated,

Petitioner,
v.

•;; ' ■■■■ ■ > .> ■; - . 
Carlisle & Jacquelin and DeCoppet & Doremus, Each 
Limited Partnerships Under New York Partnership Law, 
Article 8 and New Y ork Stock Exchange, an Unincorpo­
rated Association,

Respondents.

IN THE

M O TIO N  O F R E SPO N D E N TS FO R  L E A V E  T O  FILE 
SU P P L E M E N T A L  BR IE F A N D  S U PPL E M E N T A L BRIEF

Of Counsel:

Devereux Milburn 
Louis L. Stanton, Jr.

2 Wall Street
New York, New York 10005

Attorneys for Respondents 
Carlisle & Jacquelin and 
DeCoppet & Doremus

W illiam Eldred Jackson 
Russell E. Brooks 

1 Chase Manhattan Plaza 
New York, New York 10005

Attorneys for Respondent

Carter, Ledyard & Milburn 
Milbank, Tweed, Hadley & McCloy

New York Stock Exchange, Inc.



I N D E X

PAGE

Motion of Respondents for Leave to File Supple­
mental Brief ............................................    1

Supplemental B r ie f ..............     3

Appendix ......................................................    5

T A B L E  OF A U T H O R I T I E S

Herbst v. International Telephone and Telegraph
Corp., —  F.2d —  (2d Cir., April 3, 1974) ..........  3, 4

Kohn V. Royall, Koegel & Wells, —  F.2d —  (2d 
Cir., May 3, 1974) ................................................. 3



IN THE

Supreme (Emtrt of tin' Initefr &UU&
O cto b e r  T erm , 1973

No. 73-203
----------------- +-----------------

Morton E isen, on Behalf of Himself and All Other Pur­
chasers and Sellers of “ Odd-Lots” on the New York Stock 
Exchange Similarly Situated,

Petitioner,
v.

Carlisle & Jacquelin and DeCoppet & Doremus, Each 
Limited Partnerships Under New York Partnership Law, 
Article 8 and New Y ork Stock Exchange, an Unincorpo­
rated Association,

Respondents.

M O TIO N  O F RESPO N D E N TS FO R  L E A V E  T O  FILE 
S U P P L E M E N T A L  BRIEF

Respondents respectfully move for leave to file a supple­
mental brief, pursuant to Rule 41, to bring to the Court’s 
attention the intervening decision of the Court of Appeals 
for the Second Circuit in Kohn v. Royall, Koegel & Wells, 
—  F.2d —  (2d Cir., May 3, 1974), bearing upon the de­
cision of the Court of Appeals for the Second Circuit at bar.

May 13, 1974

Respectfully submitted,



2

Devereux Milburn 
Louis L. Stanton, Jr.

2 Wall Street
New York, New York 10005 

Attorneys for Respondents 
Carlisle & Jacquelin and 
DeCoppet & Doremus

W illiam  Eldred Jackson 
Russell E. Brooks

1 Chase Manhattan Plaza 
New York, New York 10005 

Attorneys for Respondent 
New York Stock Exchange, Inc.

Of Counsel:

Carter, Ledyard & Milburn 
Milbank, Tweed, Hadley & McCloy



IN THE

( ta r t  at %  Initrin
October Term, 1973

No. 73-203
--------♦-------

Morton E isen, on Behalf of Himself and All Other Pur­
chasers and Sellers of “ Odd-Lots” on the New York Stock 
Exchange Similarly Situated,

Petitioner,
v.

Carlisle & Jacquelin and DeCoppet & Doremus, Each 
Limited Partnerships Under New York Partnership Law, 
Article 8 and New Y ork Stock Exchange, an Unincorpo­
rated Association,

Respondents.
----------------- +-------- ---------

SU P P L E M E N T A L  BRIEF

Petitioner previously has moved for leave to file a sup­
plemental brief to call the Court’s attention to the inter­
vening decision in Herbst V. International Telephone and 
Telegraph Corp., —  F.2d —  (2d Cir., April 3, 1974). 
Petitioner contends that in the light of Herbst it is evident 
that Eisen III, by a footnote, revolutionized the law of the 
Second Circuit in respect to the jurisdiction of appeals from 
orders determining that an action may be maintained as a 
class action.

Subsequent to its Herbst decision, the Court of Appeals, 
by another panel, in Kohn v. Roy all, Koegel & Wells, — 
F.2d —  (2d Cir., May 3, 1974)*, 1) substantially limited

* A  copy of the opinion of the Court o f Appeals in Kohn is 
printed in the appendix hereto.



4

the Herbst decision; 2) made clear that footnote number 1 
in Eisen III relating to jurisdiction of appeals from orders 
granting class action status was a suggestion and not a 
holding; and 3) substantiated the contention of respondents 
herein that the Court of Appeals does not require notice 
in any class action other than one brought under Rule 
2 3 (b ) (3).

May 13, 1974

Respectfully submitted,

Devereux Milburn 
Louis L. Stanton, Jr.

2 Wall Street
New York, New York 10005 

Attorneys for Respondents 
Carlisle & Jacquelin and 
DeCoppet & Doremus

W illiam Eldred Jackson 
Russell E. Brooks 

1 Chase Manhattan Plaza 
New York, New York 10005 

Attorneys for Respondent 
New York Stock Exchange, Inc.

Of Counsel:

Carter, Ledyard & Milburn 
Milbank, Tweed, PIadley & McCloy



5

APPENDIX

UNITED STATES COURT OF APPEALS 
For the Second Circuit

--------------------+_------------------

No. 375— September Term, 1973.
(Argued April 15, 1974 Decided May 3, 1974.)

Docket No. 73-2049
----------------- +-----------------

Margaret Kohn, individually and on behalf of 
all persons similarly situated,

Plaintiff-Appellee, 
v.

Royall, Koegel & W ells,
Defendant-Appellant.

-----------------+-----------------
B e f o r e  :

Kaufman, Chief Judge,
Clark, Associate Justice,* and Sm ith , Circuit Judge.

----------------- ♦ ------------ — ■

Appeal from an order of the United States District Court 
for the Southern District of New York, Morris E. Lasker, 
Judge, granting class action status to action alleging sex 
discrimination in employment practices in violation of 
Title VII of the Civil Rights Act of 1964.

Appeal dismissed.
-----------------+-----------------

Norman S. Ostrow, New York, New York (Rog­
ers & Wells, New York, New York, on the

❖ United States Supreme Court, retired, sitting by designation.



6

brief; Caesar L, Pitassy, Paul M. Hopkins, 
William Haney, III, of counsel), Defendant- 
Appellant Pro Se.

H a r r ie t  R a b b , New York, New York (George 
Cooper, New York, New York, on the brief), 
for Plaintiff-Appellee.

■---------------- ♦----------------

K a u f m a n , Chief Judge:

Whether an order granting or denying class action 
status is an appealable “ final” order, 28 U.S.C. § 1291, is 
a question that has received an inordinate amount of 
scrutiny by circuit courts,1 * and may, we hope, soon be re­
solved with some measure of certainty by the Supreme

Appendix

1 See e.g. Herbst v. International Telephone and, Telegraph 
Corp., slip op. at 2621 (2d Cir. April 3, 1974); Shayne v.
Madison Square Garden Corp., slip op. at 1565 (2d Cir. Jan. 22, 
1974); Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d C ir.), 
cert, granted, 414 U.S. 908 (1973) (Eisen III); Korn v. Franch- 
ard Corp. and Milberg v. Western Pacific R.R., 443 F.2d 1301 
(2d Cir. 1971); Caceres v. International Air Transport Asso­
ciation, 442 F.2d 141 (2d Cir. 1970); City of New York v. 
International Pipe & Ceramics Corp., 410 F.2d 295 (2d Cir. 
1969); Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), 
cert, denied, 395 U.S. 977 (19 69 ); Eisen v. Carlisle & Jacque­
lin, 370 F.2d 119 (2d Cir. 1966), cert, denied, 386 U.S. 1035 
(1967) (Eisen I); Hackett v. General Host Corp., 455 F.2d 618 
(3d Cir.), cert, denied, 407 U.S. 925 (1972 ); Graci v. United 
States, 472 F.2d 124 (5th Cir.), cert, denied, 412 U.S. 928 
(1 9 7 3 ); Gosa v. Securities Investment Co., 449 F,2d 1330 (5th 
Cir. 1971) (per curiam); Walsh v. City of Detroit, 412 F.2d 
226 (6th Cir. 1969) (per curiam); King v. Kansas City So. 
Industries, Inc., 479 F.2d 1259 (7th Cir. 1973) (per curiam); 
Thill Securities Corp. v. New York Stock Exchange, 469 F.2d 
14 (7th Cir. 1972); Falk v. Dempsey-Tegeler & Co., A l l  F.2d 
142 (9th Cir. 1972); Gerstle v. Continental Airlines, Inc., 466 
F.2d 1374 (10th Cir. 1972).



7

Court.2 Although such orders are interlocutory in nature, 
we have sustained the appealability of those denying con­
firmation of the class where that denial, because of the 
relatively small amount of the individual claim, would for 
all practical purposes be the “death knell of the action.” 
Eisen I, supra, 370 F.2d at 121. And compare Korn v. 
Franchard, supra (order appealable where individual claim 
for $386) with Shayne V. Madison Square Garden Corp., 
supra (appeal dismissed where individual claim for $7,- 
482). Aside from Eisen III, supra, with its rather excep­
tional circumstances,3 no circuit court, however, had per­
mitted an appeal from an order granting class standing 
until we did so, only one month ago, in Herbst v. Interna­
tional Telephone and Telegraph Corp., supra. Bolstered by 
that recent decision, appellant Royall, Koegel & Wells4 
[Royall, Koegel] seeks review of Judge Lasker’s order 
granting class action status to Margaret Kohn’s Title VII5 
claim of sex discrimination in that law firm’s hiring and

Appendix

2 In granting certiorari in Eisen III, see note 1 supra, the 
Supreme Court requested the parties “ to brief and argue . . . 
[the] jurisdiction of the Court of Appeals.”  414 U.S. 908 
(1973 ). The appeal was argued on February 25, 1974. 42 
U.S.L.W. 3493 (U.S. Mar. 5, 1974).

3 Although the court in Eisen III noted its view that orders 
granting class standing were appealable, see Eisen III, supra, 479 
F.2d at 1007 n .l, the court apparently considered its power to 
review Judge Tyler’s order sustaining the class action allegations 
to flow from its retention of jurisdiction following remand of the 
case for reconsideration and specific findings in Eisen v. Carlisle 
& Jacquelin, 391 F.2d 555, 570 (2d Cir. f968 ) (Eisen II). See 
Eisen III, supra, 479 F.2d at 1007.

4 Now Rogers & Wells.

5 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e 
et seq.



8

internal employment practices. Without questioning the 
validity of Herbst,a we find it clear beyond cavil that neither 
our so-called “ death knell” doctrine nor the more general 
rubric of the Cohen collateral order doctrine apply, in the 
factual context of this case, to transform this interlocu­
tory order granting class standing into an appealable 
“ final” order. Accordingly, and without, of course, ex­
pressing any views on the merits of the litigation, we 
conclude that this appeal must be dismissed.

I.

The complaint and the affidavits submitted to Judge 
Lasker in connection with the motions before him provide 
the sparse factual record for this appeal. Margaret Kohn 
is a graduate of the Columbia Law School class of 1972. 
On November 17, 1970, during the Fall semester of her 
second year in law school, Kohn was among approximately 
40 Columbia law students interviewed for legal positions 
by two members of the firm of Royall, Koegel & Wells. 
During the week following these preliminary interviews, 
Royall, Koegel invited five Columbia law students to visit 
its offices to continue the interviewing process. Kohn re­
ceived no such invitation, nor was she offered employment 
by Royall, Koegel.

On May 27, 1971, Kohn filed a complaint with the New 
York City Commission on Human Rights alleging that 
Royall, Koegel’s failure to hire her resulted from sex dis- 6

6 Reconsideration of our “ death knell” doctrine or its extension 
in Herbst would seem particularly inappropriate at this time, in 
light of Eisen I l l ’s sub judice status in the Supreme Court. See 
note 2 supra. See also Shayne v. Madison Square Garden Corp., 
supra, slip op. at 1571.

Appendix



9

crimination. Some six months later, on November 19, 1971, 
Kohn filed a similar complaint with the Equal Employment 
Opportunity Commission [EEOC]. Finally, on June 26, 
1972, Kohn received a permission to sue letter from the 
EEOC and, on the same day, filed this action on behalf of 
herself and all those similarly situated. In her complaint, 
she claimed that Royall, Koegel had refused her employ­
ment because of her sex, as part of an ongoing pattern and 
practice of sex discrimination in violation of Title VII of 
the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. She 
sought mandatory injunctive relief to correct past discrim­
inatory practices in both recruitment and internal employ­
ment procedures, as well as damages for herself caused 
by the refusal to hire her.

In response to the complaint, Royall, Koegel moved to 
dismiss on the ground that Kohn had not filed a timely 
complaint with the EEOC, as required by statute.7. Two 
days later, on September 28, 1972, Kohn moved pursuant to 
Rule 11A of the Local Rules of the Southern District of New 
York for a determination whether the suit could proceed 
as a class action.

Judge Lasker denied the motion to dismiss and granted 
Kohn’s motion for class action status. Kohn v. Royall, 
Koegel & Wells, supra. He found that although Kohn had 
not filed her EEOC complaint within the 210-day statutory 
period commencing December 15, 1970, the date her failure

7 See Title VII, § 706 (d ), of the Civil Rights Act of 1964, 42 
U.S.C. § 20Q0e-5(e). Although the time for filing a complaint 
with the EEOC was extended by a 1972 amendment to the Act, 
neither party claimed that the amended statute applied to this 
case. Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515, 517 n 1 
(S.D.N.Y. 1973).

Appendix



10

to gain employment with Royall, Koegel became a virtual 
certainty,8 * the refusal to hire attacked by Kohn represented 
an allegedly “continuing violation” of Title VII. Thus, the 
district court concluded, “ the discriminatory pattern of 
which plaintiff complains [was] by definition ‘fresh,’ ” 
Kohn V. Royall, Koegel & Wells, supra, 59 F.R.D. at 518, 
and, accordingly, the policy behind a statute of limitations 
— to bar stale claims— did not apply.

Turning to Kohn’s motion for a class action determina­
tion, Judge Lasker concluded that Kohn’s class action 
allegations satisfied the four-part test of Fed.R.Civ.P. 
23(a). He also determined that Kohn’s claim for injunc­
tive relief fell within Fed.R.Civ.P. 23(b) (2) because 
Royall, Koegel had allegedly “acted on grounds generally ap­
plicable to the class [defined in the complaint as ‘all women 
qualified for legal positions at Royall, Koegel & Wells who 
have been or would be denied employment because of their 
sex’], thereby making appropriate final injunctive relief 
. . . with respect to the class as a whole.” Fed.R.Civ.P. 
2 3 (b )(2).

Royall, Koegel promptly moved to amend Judge Lasker’s 
order to permit certification as an interlocutory appeal, 
pursuant to 28 U.S.C. § 1292(b), of the denial of Royall, 
Koegel’s motion to dismiss for untimely filing of the EEOC

Appendix

8 Judge Lasker accepted Royall, Koegel’s contention that since 
it was a common and well known practice for large New York
law firms to extend offers of employment for the following sum­
mer by December 15, Kohn must be presumed to have known by 
that date, at the latest, that she would not receive an offer from 
Royall, Koegel. We reiterate that we do not pass judgment on 
this or any other aspect of the merits of this case.



11

complaint.9 In addition, Royall, Koegel moved for reargu­
ment of the motion to grant class action status, ques­
tioning for the first time whether Kohn, an unsuccessful 
employment applicant, had standing to allege discrimina­
tion in the firm’s internal employment practices— e.g. work 
allocation and promotion—which arguably affects current 
employees only. Judge Lasker denied both motions, Kohn 
V. Royall, Koegel & Wells, supra, 59 F.R.D. at 528-25— a 
response apparently expected by Royall, Koegel for it had 
already commenced processing its appeal from the district 
court’s class action determination.10

II.

Since we find the threshold question of appealability to 
be dispositive, we turn immediately to an elucidation of the 
reasons for our holding. It is undisputed that an order 
granting or denying class standing is not a “ final” order as 
that term has generally been construed. Nevertheless, in 
Risen I, supra, we denied a motion to dismiss an appeal 
from an order denying class standing to a plaintiff whose 
individual claim amounted to only $70. The rationale for 
our decision rested on the deceptively simple premise that 
the effect of the order denying class standing would be to 
terminate that lawsuit. We could not conceive of a lawyer

Appendix

9 We note that appellant did not seek certification of the ques­
tion whether class action status was properly granted. See Zahn 
v. International Paper Co., 53 F.R.D. 430, 434 (D.Vt. 1971), 
atfd, 469 F.2d 1033 (2d Cir. 1972), aff’d, 42 U.S.L.W. 4087 
(U.S. Dec. 17, 1973).

10 Notice of appeal was filed in the district court on April 4, 
1973. Judge Lasker’s order denying the motions for certifica­
tion and reargument was entered June 25, 1973.



12

pressing a suit where victory would mean the paltry 
recovery of $70. Thus, we concluded in Eisen I that the 
“ interlocutory”  order at issue was tantamount to an order 
of dismissal—the finality of which has, of course, never 
been questioned— and so, the “death knell” doctrine was 
born.

The subsequent and rather checkered history of the 
“ death knell” doctrine, in this and other circuits, was docu­
mented most recently in two opinions of this Court, Herbst 
V. International Telephone and Telegraph, supra, and 
Shayne v. Madison Square Garden Corp., supra. In Shayne, 
Judge Feinberg recounted that history, in part, in this 
manner:

The “death knell” doctrine, thus announced, has not 
atrophied through lack of use, e.g., Korn v. Franchard 
Corp., 443 F.2d 1301 (2d Cir. 1971); Green v. Wolf 
Corp., 406 F.2d 291 (2d Cir. 1968), cert, denied, 395 
U.S. 977 (1969), although it has not escaped criticism. 
The Third and Seventh Circuits have recently rejected 
the doctrine as an undue extension of the right to an 
appeal before final judgment.11 Hackett V. General 
Host Corp., 455 F.2d 618 (3d Cir.), cert, denied, 407 
U.S. 925 (1972); King v. Kansas City So. Industries, 
Inc., 479 F.2d 1259 (7th Cir. 1973) (per curiam). Con­
versely, there have been rumblings of disapproval in

Appendix

11 The Fifth Circuit, however, has apparently adopted a some­
what modified version of the “ death knell”  rule. E.g., Graci V. 
United States, 472 F.2d 124, 126 (5th C ir.), cert, denied, 412 
U.S. 928 (19 73 ); Miller v. Mackey Int’l, Inc., 452 F.2d 424, 
427, n.3 (5th Cir. 1971). See also Falk v. Dempsey-Tegeler & 
Co., 472 F.2d 142 (9th Cir. 1972).



13

our court because the doctrine grants a right to appeal
to some plaintiffs, but not to any defendants . . . . 12 * 14

Shayne v. Madison Square Garden Corp., supra, slip. op. at 
1569-1570 (footnotes renumbered).

Shayne turned on the appealability of an order denying 
class standing. Despite the “ rumblings” to which Judge 
Feinberg referred, however, we have not until quite re­
cently been faced with the necessity of determining the 
appealability of orders granting class standing. To be 
sure, in Korn v. Franchard, supra, which like Shayne, in­
volved an order denying class standing, then Chief Judge 
Friendly, in a brief concurring opinion, did express con­
cern over the “ death knell” doctrine’s apparently unequal 
application as between plaintiffs and defendants. Korn v. 
Franchard, supra, 443 F.2d at 1307. And, in Eisen III, 
Judge Medina, accepting Judge Friendly’s equality caveat, 
did note that the “ death knell” doctrine should not be 
limited to orders denying class standing but rather, de­
served the “practical” construction emphasized in its Su­
preme Court progenitors, Cohen v. Beneficial Industrial 
Loan Corp., 337 U.S. 541 (1949) and Gillespie v. United 
States Steel Corp., 379 U.S. 148 (1964). Since the Eisen 
II court had specifically “ retained jurisdiction,” however, 
the Eisen III court’s jurisdiction to review Judge Tyler’s 
order granting class standing did not, as we have indicated, 
rest on a de novo determination of appealability.

Appendix

12 On the other hand, the Sixth and Seventh Circuits have held
that orders granting class status are not appealable. Walsh v. 
City of Detroit, 412 F.2d 226 (6th Cir. 1969) (per curiam); 
Thill Securities Corp. v. New York Stock Exchange, 469 F.2d
14 (7th Cir. 1972).



14

In Herbst V. International Telephone and Telegraph 
Corp., supra, the question of appealability of an order 
granting class standing was squarely presented. Judge 
Blumenfeld had permitted Mrs. Herbst to represent a class 
of all Hartford Fire Insurance Company [Hartford] share­
holders who had exchanged their shares for International 
Telephone and Telegraph Corporation [ITT] preferred 
stock pursuant to XTT’s 1970 tender offer for Hartford— 
an exchange allegedly tainted by violations of the secu­
rities laws. Herbst, herself, owned only 100 of the 22 mil­
lion shares of Hartford common stock exchanged. Her class 
action, as is usual in such cases, rested on Fed.R.Civ.P. 
23(b) (3 )— the predominant existence of common questions 
of law or fact— as, indeed, had Mr. Eisen’s class action 
claiming antitrust violations by the odd-lot brokerage 
houses.

Judge Lumbard, speaking for the court, though the other 
members of the panel candidly expressed their doubts over 
the holding,13 found Judge Blumenfeld’s order appealable. 
In reaching this conclusion, he applied the following tri­
partite analysis suggested in Eisen I II :

(1) Whether the class action determination is “ funda­
mental to the further conduct of the case;”

(2) whether review of that order is “ separable from 
the merits;” 13

13 Judge Danaher concurred dubitante in a separate opinion. 
Judge Mulligan, also concurring in a separate opinion, expressed 
“ grave doubt that this order granting class action status is ap­
pealable . . . [but was] not inclined to depart from Eisen III 
which is now on review in the Supreme Court.” Herbst V. 
International Telephone and Telegraph, supra, slip op. at 2656 
(Mulligan, J. concurring).

Appendix



15

(3) whether that order will cause “ irreparable harm 
to the defendant in terms of time and money spent 
in defending a huge class action. . . . ”

See Herbst v. International Telephone and Telegraph, su­
pra, slip. op„ at 2628.

Although the opinion in Herbst contains little more than 
a mention of the first factor, Mrs. Herbst’s petty share 
holdings support the conclusion that the order granting 
class standing was “ fundamental to the further conduct of 
the case.”  We presume that since Herbst relied on Eisen 
III, which in turn had adopted Judge Friendly’s “ equality 
of treatment” standard for appealability, Judge Lumbard 
construed this fundamental-to-the-further-conduct require­
ment as applying in those cases where the denial of class 
standing would satisfy our “death knell” doctrine of effec­
tive dismissal. In such instances, an order granting class 
standing would also be “ fundamental to the further con­
duct of the case” for, if that order were erroneous and 
therefore reversed on appeal, the action would for all prac­
tical purposes be at an end. We recognize, of course, that 
a not insubstantial number of interlocutory orders— prin­
cipally those denying motions to dismiss pursuant to Fed. 
R.Civ.P. 12(b), or for summary judgment pursuant to 
Fed.R.Civ.P. 56— would, if reversed on appeal, similarly 
prove dispositive of the litigation. Accordingly, and with­
out reconsidering at this time the wisdom of Herbst, we 
hold only that a necessary though not sufficient element in 
the appealability equation is whether the action’s viability 
turns on the class action determination.

The second element in the Eisen III-Herbst appealabil­
ity equation— review which is “ separable from the merits

Appendix



16

of the case”— rests squarely on the collateral order doc­
trine announced by the Supreme Court in Cohen v. Bene­
ficial Industrial Loan Corp., supra. In formulating that 
doctrine, the Court faced the necessity of striking the 
proper balance between the inequities of deferred review, 
on the one hand, and the unconscionable waste of judicial 
resources resulting from the duplication of effort in piece­
meal review, on the other. Thus, an order appealable under 
Cohen must not only be “ a final disposition of a claimed 
right which is not an ingredient of the cause of action . . . 
[but one which] does not require consideration with it 
[i.e. the cause of action].” Cohen v. Beneficial Industrial 
Loan Corp., supra, 337 U.S. at 546-47. And, although Herbst 
does not focus on the degree of separability between the 
issues involved in the merits of the action and those under­
lying the propriety of the class action determination, it is 
reasonable to presume that in sprawling Rule 23(b) (3) 
class actions, such as Eisen and Herbst, questions of notice 
and manageability— totally unrelated to the merits of the 
action— will be in the forefront. Accordingly, legal and fac­
tual issues considered at an intermediate stage of appellate 
review will not likely resurface on appeal from final judg­
ment.

The third factor, “ the irreparable harm to a defendant 
in terms of time and money spent in defending a huge 
class action,” received by far the most attention in Herbst. 
The enormous damages sought by the class inevitably re­
quire a sizeable expenditure for defense purposes and, 
because of this, will often spur settlement “ even though 
the validity of plaintiff’s claims are doubtful.” Herbst v. 
International Telephone and Telegraph Corp., supra, slip

Appendix



17

op. at 2630. Although large damage claims are not unique 
to class actions, “ the representation features of class ac­
tions,” as Judge Lumbard noted,

mean that both parties have to expend much effort 
and money in notifying members of the class, deter­
mining who is in and who has opted out, calculating 
damages, and the like. Furthermore, the district courts, 
if the cases go beyond initial proceedings, themselves 
must exercise more effort in supervising such actions 
than they would in individual cases.

Id. at 2629. We hasten to add that this additional burden, 
to a large extent, is limited to those class actions brought 
under subdivision (b) (3) of Rule 23 because it is only in 
those actions that the court is required to ensure that all 
members of the potential class are notified of the action’s 
pendency so that they may be afforded the opportunity to 
opt out. Fed.R.Civ.P. 23(c) (2). Since Herbst, like Eisen, 
was a Rule 23(b) (3) class action, the costs of satisfying 
the notice requirement, both monetary and in terms of 
judicial resources, were of course highly relevant.

III.

Applying to this case the same three criteria which 
combined to favor appealability in Herbst, we reach the 
opposite conclusion here. We note that defendant-appel­
lant, appearing pro se, conceded at oral argument that 
Kohn could reasonably be expected to continue the action 
in her individual capacity. In short, appellant does not 
dispute that the class action determination is not “funda­
mental to the further conduct of the case.” This, we might

Appendix



18

add, was hardly a surprising concession, for the difficulties 
in finding counsel willing to litigate a small damage claim 
do not face Kohn in her efforts to remedy the alleged 
violation of Title VII in the appellant’s hiring and in­
ternal employment practices. See Hackett v. General Host 
Corp., supra, 455 F.2d at 622. A victorious plaintiff in a 
Title VII suit, for example, may recover costs and reason­
able attorneys’ fees. 42 U.S.C. § 2000e-5(k). Counsel in 
this type of suit, moreover, tend to be drawn from the 
so-called “public interest” bar and, accordingly, may con­
sider the amount of fees to be of secondary importance.

Appellant’s failure to demonstrate the “ fundamental” 
nature of this class action determination, in our view, 
virtually requires dismissal of the appeal. Nevertheless, 
we need not rest our decision on that basis alone. Turning 
to the second factor, we find that review of Judge Lasker’s 
order would take us far into the merits of Kohn’s sex 
discrimination charge. Indeed, even a cursory glance at 
the principal points raised by Royall, Koegel in contest­
ing class action status reveals the unavoidable overlap.

Point I of appellant’s brief, for instance, proffers the 
contention that there is no common question of law or 
fact as required by Fed.R.Civ.P. 23(a) (2). Consideration 
of this argument, of course, would require us to examine 
not only the factual strength but the legal relevancy of 
Kohn’s allegation of a discriminatory pattern and prac­
tice in Royall, Koegel’s hiring and internal employment 
procedures— a claim which would otherwise seem prima 
facie to satisfy the common question test. Yet, the pattern 
and practice issue is at the very heart of the merits of 
this action.

Appendix



19

Appellant also attacks the class action determination 
(Brief of Appellant, Point II), by claiming that Kohn 
will not adequately represent the class, as required by 
Fed.R.Civ.P. 23 (a) (4), because, unlike some members of 
the purported class, she is not a present employee. Once 
again, however, were we to permit interlocutory review, 
we would be forced to delve into an issue— Eohn’s stand­
ing to question the firm’s internal employment practices— 
which is inextricably intertwined with the ultimate merits 
of Kohn’s claim for relief.14

Nor, finally, can appellant sustain the contention that it 
will suffer “ irreparable harm” by being forced to defend 
this suit as a class action. All lawsuits are potentially 
costly and time-consuming. Attention, therefore, must be 
directed to the incremental cost and time in defending the 
particular action if it is maintained as a class action— 
an insignificant amount in this case.

In contrast to Eisen and Herbst, in which a substantial 
cost to both the defendant and the district court would 
arise from compliance with the notice requirement for Rule 
23(b) (3) class actions, the instant suit, brought under Rule 
23 (b) (2), bears, as we have noted, no such notice require­
ment. Moreover, even the routine litigation costs— e.g. pre­
trial discovery and trial preparation— should not be sub­
stantially greater in this instance whether Kohn proceeds

14 Appellant’s third line of attack would equally involve us in 
an issue fundamental to an evaluation of the merits— the ap­
plicability of the “ continuing violation” theory to the facts of 
this case. See Brief of Appellant, Point III, pp. 29-32. In 
effect, therefore, appellant would obtain interlocutory review 
o f an order— in this instance, its unsuccessful motion to dismiss 
— which is otherwise clearly not appealable at this preliminary 
stage in the litigation.

Appendix



20

alone or as a class representative. Although appellant 
insisted at argument that the scope of the relevant evi­
dence would be primarily confined to Kohn’s own contact 
with the firm if she proceeded on an individual basis, we 
cannot agree with this circumscribed relevancy assessment. 
The Supreme Court, in McDonnell Douglas Corp. v. Green, 
411 U.S. 792 (1973), a private, non-class action challeng­
ing employment discrimination, stated:

Other evidence that may be relevant to any show­
ing of pretext [for what is in reality a discriminatory 
employment practice] includes . . . petitioner’s gen­
eral policy and practice with respect to minority em­
ployment. On . . .  [this] point, statistics as to petition­
er’s employment policy and practice may be helpful 
to a determination of whether petitioner’s refusal to 
rehire respondent in this case conformed to a general 
pattern of discrimination against blacks. Jones v. Lee 
Way Motor Freight, Inc., 431 F.2d 245 (CA10 1970); 
Blumrosen, Strangers in Paradise: Griggs v. Duke 
Power Co., and the Concept of Employment Discrim­
ination, 71 Mich. L. Rev. 59, 91-94 (1972). In short, 
on the retrial respondent must be given a full and 
fair opportunity to demonstrate by competent evi­
dence that the presumptively valid reasons for this 
rejection were in fact a coverup for a racially dis­
criminatory decision.

Id. at 804-05 (footnotes omitted).
The final judgment rule is a salutary principle of long­

standing duration. See generally 9 J. Moore, Federal Prac­
tice ]] 110.06 et seq. (2d ed. 1973). At a time when our

Appendix



21

appellate calendars are overflowing, the incisive words of 
Mr. Justice Frankfurter are particularly worthy of repe­
tition :

Finality as a condition of review is an historic 
characteristic of federal appellate procedure. It was 
written into the first Judiciary Act and has been de­
parted from only when observance of it would prac­
tically defeat the right to any review at all. Since the 
right to a judgment from more than one court is a 
matter of grace and not a necessary ingredient of 
justice, Congress from the very beginning has, by 
forbidding piecemeal disposition on appeal of what 
for practical purposes is a single controversy, set it­
self against enfeebling judicial administration. There­
by is avoided the obstruction to just claims that would 
come from permitting the harassment and cost of a 
succession of separate appeals from the various rul­
ings to which a litigation may give rise, from its initia­
tion to entry of judgment. To be effective, judicial 
administration must not be leaden-footed.

It is readily apparent that we do not have before us one 
of those exceptional instances which compels disregard of 
the sound policy of finality. Accordingly, the appeal is 
dismissed.

Appendix