Gulf Oil Company v. Bernard Brief for Respondents

    No. 80-441

I k  t h e

&ttprrmr Court of % Initrti Butrn
O ctober T erm , 1980

Gulf Oil Company, et al.,
Petitioners,

vs.

W esley  P. B ernard, et al.,
Respondents.

ON WRIT OP CERTIORARI TO THE UNITED STATES 
COURT OP APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS

J ack Greenberg 
P atrick O. P atterson*
B ill Lann Lee 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Barry L. Goldstein
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005

Ulysses Gene Thibodeaux 
425 Alamo Street 
Lake Charles, Louisiana 70601

Stella M. Morrison
1015 East Gulfway Drive 
Port Arthur, Texas 77640

Attorneys for Respondents 

* Counsel of Record



Question Presented

Whether the district court's several orders 
restraining communication by plaintiffs and their 
attorneys with members of the potential class in 
this civil rights action violated the Constitution 
or the Federal Rules of Civil Procedure, where 
there were no findings of any improper conduct by 
plaintiffs or their counsel, the uncontradicted 
evidence demonstrates no misconduct by them, and 
no evidentiary hearing was ever held. *

*J Respondents do not accept petitioners' 
formulation of the question presented. See, Sup. 
Ct. Rule 34.2. First, three orders were issued 
barring communications, not one. Second, the 
district court made no findings of any abuse, 
actual or potential, and the Fifth Circuit panel 
opinions (JA 195, n.14, 209-210 and n.9) and the 
en banc court (JA 241 and n.7) found petitioners' 
allegations of specific abuse "irrelevant." 
Moreover, petitioners' brief cites no "actual" 
abuse, and refers only to unsupported "threats 
of abuse" and "threatened abuses." Brief for 
Petitioners, pp. 11, 22, 36. Third, although 
petitioners' question raises only the issue of the 
constitutionality of the several orders, their 
brief, pp. 14-26, also considers whether the 
orders comply with Rule 23, Fed. R. Civ. Pro., as 
did the Fifth Circuit. (JA 190-195, 208-216, 268, 
269-276).



TABLE OF CONTENTS

Question Presented ..................   i

Table of Authorities ........ ........

Statement of the Case ........   1

Administrative Proceedings .....  2

Plaintiffs' Complaint and
Their Counsel .......   9

The May 28 Order ................ 13

The June 22 Order ..............   17

The August 10 Order ............. 23

Other Proceedings ..............  24

Summary of Argument ........    25

Argument ..........................  28

I. The Orders Restraining 
Communications Denied Plain­
tiffs, Their Counsel and 
Potential Class Members 
Meaningful Access to the 
Courts in Violation of the 
First Amendment

Page

34



A. Expression and Assoc­
iation to Advance Litigation 
Are Rights Protected by the
First Amendment ............  34

B. The Orders Infringe Upon 
First Amendment Rights With­
out Requisite Proof of
Misconduct .................. 45

1. Absence of Proof of
Misconduct .............  45

2. The Manual for Com­
plex Litigation ........  48

C. The Orders Impose Un­
constitutional Prior Re­
straint On Protected
Expression .................  59

D. The Orders Are Over­
broad ......................  70

II. The Orders Restraining 
Communications Violate the Due 
Process Clause of the Fifth 
Amendment ......................  74

A. The Due Process Clause 
Guarantees Plaintiffs and 
Potential Class Members 
Significant Procedural
Rights ..............  74

Page

-iii-



B. Adequate Information
Was Denied..... ....... 78

C. Effective Assistance of
Counsel Was Denied .........  83

D. An Adequate Hearing and 
Procedural Regularity Were
Denied ...................... 93

III. The Orders Are Inconsistent
With The Federal Rules Of Civil
Procedure ...................  97

A. The Orders Are Incon­
sistent With Rule 23 ....... . 98

B. Rule 23 Should Be
Construed So As To Avoid 
Grave Doubts Of Unconstitu­
tionality ..................  105

Conclusion ......................... * 1°7

Addendum A

Addendum B



TABLE OF AUTHORITIES

Ace Heating and.Plumbing Co. v.
Crane Co., 453 F.2d 30
(3d Cir. 1971) .................. . 58

Cases: Page

Albemarle Paper Co. v. Moody, 
422 U.S. 405 (1975) ........ 11, 44, 103

Alexander v. Gardner-Denver Co., 
415 U.S. 36 (1974) 75, 77, 102 

103
Bantam Books v. Sullivan, 372 
U.S. 58 (1973) ......... 64

Bates v. Little Rock, 361 U.S. 
516 (1960) ....___ 34

Bates v. State Bar of Arizona, 
433 U.S. 350 (1977) .... 53, 54, 

55, 73

Bell v. Burson, 402 U.S. 535
(1971) ............................ 75

Boddie v. Connecticut, 401 U.S. 
371 (1971) ......... . 75, 93

-v-



Page

Bolling v. Sharpe, 347 U.S.
497 (1954) .............. .......... 83

Bridges v. California, 314 U.S.
252 (1941) ......... ...........____ 47

Brotherhood of Railroad Trainmen
v. Virginia, 377 U.S. 1 (1964) ....  37, 41, 44,

45, 84, 89

Buckley v. Valeo, 424 U.S. 1
(1976) ................... . 64, 67

CBS, Inc. v. Young, 522 F.2d
234 (6th Cir. 1975) ............ 66

Cafeteria Workers v. McElroy,
367 U.S. 886 (1961) ---------------• 93

Cantwell v. Connecticut, 310•
U.S. 296 (1940) ---...----------... 54

Carlisle v. LTV Electrosystems,
Inc., 54 F.R.D. 237 (N.D. Tex.
1972), appeal dism'd No., 72-1605
(5th Cir. June 23, 1972) ........... 59

-vi-



Page

Gaston v. Sears,- Roebuck & Co.
556 F.2d 1305 (5th Cir. 1977) ..........  88

Chicago Council of Lawyers v.
Bauer, 522 F.2d 242 (7th Cir. 1975)
cert, denied, 427 U.S. 912
(1976) ............................. 51, 66, 71

Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978) ......... 44, 75, 88

Coles v. Marsh, 560 F.2d 186 
(3d Cir.. 1977)', cert, denied,
434 U.S. 985 (1977) ............... 28, 47, 53, 

97, 104

Cooke v. United States, 267
U.S. 517 (1925) ...................

*
85

Coopers & Lybrand v. Livesay,
437 U.S. 463 (1978) ......___...... 100, 101

Copeland v. Marshall, 24 EPD 
5 31, 219 (D.C. Cir. 1980) 
(en banc) .................. 41

Cox v. Louisiana, 379 U.S. 536
(1965) ............................. 83

-vii-



Page

Cox v. Louisiana 379 U.S.
559 (1965) .................*----- 83

Craiq v. Harney, 331 U.S. 367
(1947) ...................... . 50

Deposit Guaranty Nat'l Bank
v. Roper, 445 U.S. 326 (1980) ....  41, 99, 100,

101

East Texas Motor Freight System,
Inc. v. Rodriguez, 431 U.S. 395 (1977) 102

EEOC v. Red Arrow Corp., 392
F. Supp. 64 (E.D. Mo. 1974) ........ 60

Eisen v. Carlisle & Jaquelin, 417
U.S. 156 (1974) .................... 76, 97,

98, 99

Ex parte Endo, 323 U.S. 283 (1944) ... 105

First Nat'l Bank of Boston v.
Bellotti, 435 U.S. 765 (1978)..... . 47

Franks v. Bowman Transportation
Co., 424 U.S. 747 (1976) .......... 12, 44, 103

-viii1



Page

Fuentes v. Shevin, 407 U.S. 67
(1972} ............................ . 75, 77, 78, 

83, 93, 94

Gannett Co. v. DePasquale, 443
U.S. 368 (1979) ...___.....___ ... 65

General Telephone Co. v. EEOC,
446 U.S. 318 (1980) .............. 103

Gibson v. Florida Legislative 
Investigation Comm., 372 U.S.
539 (1963) ....................... 34

Gideon v. Wainwright, 372 U.S.
335 (1963) ....................... 84

Goldberg v. Kelly, 397 U.S. 254 
(1970) .......................... 75, 84

Greenfield v. Villager Industries, 
Inc., 483 F .2d 824 (3d Cir. 1973) . 79

Greisler v. Hardee's Food Systems, 
Inc., 1973 Trade Cases f 74,455 
(E.D. Pa. 1973) ...................

-ix-

55



Page

Griggs v. Duke Power Co., 401
U.S. 424 (1971) .............. ..... 11,

Hagans v. Lavine, 415 U.S. 528 
(1974) ..................

In re Halkin, 598 F.2d 176 
(D.C. Cir. 1979) ......

Halverson v. Convenient Food 
Mart, Inc., 458 F.2d 927
(7th Cir. 1972) ......... .......... 29

Hansberry v. Lee, 311 U.S. 32 
(1940) ......... ..........

Hawkins v. Holiday Inns, Inc., 
[1978-1] Trade Cases II 61,838 
(W.D. Tenn. 1978) ...........

Hickman v. Taylor, 329 U.S. 495
(1947) .... ............ 67, 91

Hilliard v. Volcker, 24 FEP
Cases 1516 (D.C. Cir. 1981) ---...

102

97

71

53

76

60

, 92

88

-x-



Page

Hirschkop v. Snead, 594 F.2d
356 (4th Cir. 1979) .............. 66, 71

IBM Corp. v. Edelstein, 526
F.2d 37 (2d Cir. 1975) ...............   92

ICC v. Oregon-Washington R.& Nav.
Co., 288 U.S. 14 (1933) ................. 106

Johnson v. Robison, 415 U.S. 361
(1974) .....................   83

Kent v. Dulles, 357 U.S. 116
(1958) .........................  105

Kingsley Books v. Brown, 354 U.S.
436 d957) .................... . 52, 63

Korn v. Franchard Corp., 1971 
Sec. L. Rep. 5 92,845 (S.D.N.Y.
1971) ..................................  58

Korn v. Franchard Corp., 456
F.2d 1206 (2d Cir. 1972) ___....... 58

-xi-



Page

Landmark Communications, Inc. 
v. Virginia, 435 U.S. 829
(1978) .............--- ............ 50, 62

Love v. Pullman Co., 404 U.S.
522 (1972)  ...... . 77, 87

Matarazzo v. Friendly Ice Cream 
Corp., 62 F.R.D. 65
(E.D.N.Y. 1974) ......    55

McCargo v. Hedrick, 545 F .2d 393
(4th Cir. 1976) ...............   97

Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241 (1974) .....  64, 69

Miller v. Amusement Enterprises,
Inc., 426 F.2d 534 (5th Cir.
1970) .......   12

Mosley v. St. Louis Southwestern 
Ry., 634 F.2d 942 (5th Cir.
1981) ...........................  77

Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306 (1950) ..... 78, 82,

84, 93

-xii-



Page

NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449
(1958) ...... ...................... 67, 90

NAACP v. Button, 371 U.S. 415
(1963) ............................ Passim

Near v. Minnesota, 283 U.S.
697 (1931) ................ ........ 61

Nebraska Press Ass'n v. Stuart,
427 U.S. 539 (1976) ............... 71, 74

New York Times Co. v. Sullivan,
376 U.S. 254 (1963) ............... 55, 67

New York Times Co. v. United
States, 403 U.S. 713 (1971) ....... 61, 64

Newman v. Piggie Park Enterprises, 
Inc., 390 U.S. 400 (1968) .......... 44

Niemotko v. Maryland, 340 U.S. 
203 (1351) 83

-xixi-



Page
NLRB v. Hardeman Garment Corp.,

557 F ,2d 559 (6th Cir. 1977) .......

NLRB v. Robbins Tire & Rubber 
Co., 437 U.S. 214 (1978) .. .

North American Acceptance v. 
Arnall Golden & Gregory, 593 
F.2d 642 (5th Cir. 1979) ---

Northcross v. Board of Education, 
611 F .2d 624 (6th Cir. 1979), 
cert, denied, 100 S. Ct. 2999- 
(1980) ..... ..................

Northern Acceptance Trust 1065 
v. AMFAC, Inc., 51 F.R.D. 487 
(D. Hawaii 1971) ................  55, 58

NOW v. Minnesota Mining Mfg. Co.,
18 FEP Cases 1176 (D. Minn. 1977) , 
appeal dism'd, 578 F.2d 1384 (8th 
Cir. 1978) ....................

Ohralik v. Ohio State Bar Ass'n, 
436 U.S. 447 (1978) .....

Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340 (1978) ................ 100,

91

91

80

41

60

58

72

102

-xiv-



Page

Oscar Mayer & Co. v. Evans,
441 U.S. 750 (1979) .............. 87

Pettway v. American Cast Iron Pipe
Co., 411 F.2d 998 (5th Cir. 1969)... 91

Pittsburgh Press Co. v. Human 
Relations Comm'n, 413 U.S.
376 (1973) ........................  64, 72

Potashnick v. Port City Construc­
tion Co., 609 F .2d 1101 (5th Cir.
1980) .............   85

Potts v. Flax, 313 F.2d 284
(5th Cir. 1963) ................... 102

Powell v. Alabama, 287 U.S. 45
(1932) ...........................   85

In re Primus, 436 U.S. 412 (1978) .... Passim

Reed v. Sisters of Charity of the 
Incarnate Word of Louisiana, Inc.,
25 Fed. Rules Serv. 2d 331
(W.D. La. 1978) .................... 59

-xv-



Page

Regional Rail Reorganization
Act Cases, 419 U.S. 102 (1974) .... 105

Richmond Newspapers, Inc. v.
Virginia, 65 L.Ed. 2d 973 (1980) ... 30, 47

Rodgers v. United States Steel 
Corp., 508 F.2d 52 (3d Cir.),
cert, denied, 423 U.S. 832 (1975) .. 97, 98,

103, 104

Roger J. Au & Son, Inc. v. NLRB,
538 F. 2d 80 (3d Cir. 1976) ........  90

Romasanta v. United Airlines, Inc.,
537 F .2d 915 (7th Cir. 1976),
aff'd sub nom. United Airlines, Inc.
v. McDonald, 432 U.S. 385 (1977) ... 79

Rothman v. Gould, 52 F.R.D. 494
(S.D.N.Y. 1971) .................... 59

Sanders v. Russell, 401 F.2d 241
(5th Cir. 1968) .............---... 97

Sargeant v. Sharp, 579 F.2d 645
(1st Cir. 1978) .................... 48, 94

-xvi-



Page

In re Sawyer, 360 U.S. 622 (1959) .... 57

Shelton v. Tucker, 364 U.S. 479
(1960) ....... ..................... 34, 72

Smith v. Daily Mail Publishing Co.,
443 U.S. 97 (1979) ................  62, 63

Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546 (1975) ....... 61, 63, 64

Speiser v. Randall, 357 U.S. 513
(1958) ............................ 67

Stanley v. Illinois, 405 U.S.
645 (1972) ........ ............. 76, 77

Thornhill v. Alabama, 310 U.S. 88
(1940)  .....      83

Trafficante v. Metropolitan Life
Ins. Co., 409 U.S. 205 (1972) ...... 44

United Mine Workers v. Illinois Bar
Ass'n, 389 U.S. 217 (1967) ......... Passim

-xvii-



Page

United States c. Jin Fuey Moy, 241
U.S. 394 (-1916) ..................105

United States v. Standard Brewery,
251 U.S. 210 (1920) .............. . 106

United Transportation Union v. State 
Bar of Michigan, 401 U.S. 576
(1971) .................    Passim

Vance v. Universal Amusement Co.,
445 U.S. 308 (1980) ................ 61, 63

Village of Schaumburg v. Citizens 
for a Better Environment,
444 U.S. 620 (1980) ................54, 55, 56,

71, 72

Virginia Pharmacy Board v. Virginia,
Consumer Council,.425 U.S.
748 (1976) ..........   54

Walker v. City of Birmingham, 388
U.S. 307 (1967) ...................  70

Weisman v. Darneille, 78 F.R.D.
671 (S.D.N.Y. 1978) ---............ 58

-xviii-



Page

Wetzel v. Liberty Mutual Ins. Co.,
508 F.2d 239 (3d Cir.), cert.
denied, 421 U.S. 1011 (1975) .......  80

Winfield v. St. Joe Paper Co.,
20 FEP Cases 1103 (N.D. Fla.
1979) ............       78

Wood v. Georgia, 370 U.S. 375
(1962) ..........................  47

Yaffe v. Detroit Steel Corp.,
50 F.R.D. 481 (N.D. 111.
1970) ......................... . ... 59

Yates v. United States, 354 U.S.
298 (1957) ........................  105

Zarate v. Younglove, 86 F.R.D.
80 (C.D. Cal. 1980) ...............  41, 66

-XIX'



Constitutional Provisions and 
Statutes;

First Amendment .............

Fifth Amendment, Due Process Clause ..

Fourteenth Amendment Equal Protection 
Clause ....... ....................

42 U.S.C. § 1981, Civil Rights Act 
of 1866 ....... ...............

42 U.S.C. § 1988, Civil Rights
Attorneys' Fees Awards Act of 1976 .

42 U.S.C. §§ 2000e et seq., Title VII 
of the Civil Rights Act of 1964, as 
amended by the Equal Employment 
Opportunity Act of 1972 ..........

Rules:

Rule 34.2, 
Court ..

Rules of the Supreme

-xx-

Page

Passim

Passim

83

2

44

Passim



Page

Rule 23, Fed. R. Civ. Pro............  Passim

Rule 65, Fed. R. Civ. Pro............  15

Rule 83, Fed. R. Civ. Pro.

Other Authorities:

ABA Code of Professional
Responsibility, DR 2-104 (a) (1) ....  53

ABA Code of Professional
Responsibility, DR 7-104 ....... . 60

ABA Code of Professional
Responsibility, EC 2-3 ...........

II ABA Comm, on Professional 
Ethics, Informal Ethics 
Opinions 537-540. Inform.
Op. No. 1280, Aug. 8, 1973
(ABA 1975) ........................ 55

-xxi-



Page

II ABA Comm, on Ethics and 
Professional Responsibility,
Informal Ethics Opinions, Inform.
Op. No. 1283, Nov. 20, 1973
(ABA 1975) ...................... . 55

ABA Comm, on Professional Ethics 
and Grievances, Opinions, No. 148,
1935 (1957) ................ 36, 53, 57

Advisory Comm. Notes, Proposed Rules 
of Civil Procedure, 39 F.R.D. 69 
(1966) ............................. 98

Comment, Judicial Screening of Class 
Action Communications, 55 N.Y.U.
L. Rev. 670 (1980) (forthcoming) ... 5 0

Comment, Restrictions on Communica­
tion by Class Action Parties and
Attorneys, 1980 Duke L.J. 360 .....  50

118 Cong. Rec. 940-41 (1972) ......... 87

118 Cong. Rec. 7168 (1972) ........... 103

88 Harv. L. Rev. 1911 (1975) ......... 50, 66

—X X 1 1 !~



Page

Manual for Complex and Multi- 
District Litigation, 49 F.R.D.
217 (1970) ........................ 15

Manual for Complex Litigation, 1 Pt.
2 Moore's Federal Practice (2d ed.
1980) Passim

Note, The Right To Counsel in Civil 
Litigation, 66 Colum. L. Rev. 1322 
(1966) .........................   85

S. Rep. No. 94-1011, Civil Rights 
Attorneys' Fees Awards Act of 1976,
94th Cong., 2d Sess. (1976) .......  44

Seymour, The Use of "Proof of Claim"
Forms and Gag Orders in Employment
Discrimination Class Actions, 10
Conn. L. Rev. 920 (1978) ..........  50, 67, 79

U.S. Bureau of the Census, 1970 
Census of Population: General
Social and Economic Characteristics,
PC (1)- (45) (Texas) ....___........ 96

-xxiii-



Page

Wilson, Control of Class Action 
Abuses Through Regulation of 
Communications, 4 Class Action 
Rpts. 632 (1975) .............

-xxiv-



No. 80-441

IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1980

GULF OIL COMPANY, et al.,

Petitioners,

vs.

WESLEY P. BERNARD, et al.,

Respondents.

On Writ Of Certiorari To The United States 
Court Of Appeals For The Fifth Circuit

»
BRIEF FOR RESPONDENTS

r u „ 1/ Statement of the Case—

This employment discrimination action 
was filed by six present or retired black employ-

1/  "Understanding the issues requires a more 
complete history than [a] brief statement," as 
the Fifth Circuit observed. (JA 199, see 234).  
Cf., NAACP v. Button, 371 U.S. 4 15 ,  4 1 9 -4 2 6  
TT963)1 Petitioners' cursory statement of the 
case, Br, pp. 3-7 ,  provides an inaccurate account 
of the record.



ees of Gulf Oil Company's Port Arthur, Texas
refinery (hereinafter "Gulf") against Gulf and the
Oil Chemical and Atomic Workers International
Union and Local Union No. 4-23 (hereinafter
"unions") for violation of 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 

2 /(JA 11).—  The issue is the validity of, three 
orders of the district court restraining communi­
cation by plaintiffs and their counsel with 
potential class members.

Administrative Proceedings

- 2 -

In June 1967, three of the plaintiffs, Wesley 
P. Bernard, Hence Brown, Jr., and Willie Johnson 
filed charges of racial discrimination with the 
Equal Employment Opportunity Commission (herein­
after "EEOC") against Gulf and the local union

2/ Citations are to the Joint Appendix (here­
inafter "JA"). The Brief For Petitioners will be 
referred to hereinafter as "Br."



pursuant to Title VII. (JA 177).—  The EEOC 
investigated and issued decisions of reasonable 
cause sustaining the three charges in August 1968. 
(JA 178). On February 26, 1975, the three com­
plainants received letters from the EEOC stating 
that Gulf and the local union did not wish 
to continue conciliation discussions, and that 
they could request, at any time, notices of 
right to sue pursuant to Title VII. (JA 178, 
n.2). See, 42 U.S.C. § 2000e-5(f)(1).

Meanwhile, a separate charge of discrimina­
tion on the basis of both race and sex at the Port 
Arthur refinery was filed against Gulf by a 
Commissioner of the EEOC in 1968. (JA 26). See, 
42 U.S.C. § 2000e-5(b). Reasonable cause was 
found to sustain the charge, and Gulf commenced 
conciliation discussions with the EEOC and the 
Office of Equal Opportunity of the United States 
Department of the Interior. Eventually, a

- 3 -

3 /

3/ Overall, more than 40 charges of employment 
discrimination were filed by black employees with 
the EEOC against the company in 1967. Brief 
for the Equal Employment Opportunity Commission, 
Amicus Curiae, On Rehearing En Banc, 5th Cir., 
77-1502, at 2.



- 4 -

conciliation agreement was signed by Gulf, EEOC 
and the Department of the Interior on April 14, 
1976. (JA 26).

The conciliation agreement provided relief in
4 /three primary areas: "back pay,"-  "goals and

5/
timetables" for upgrading certain employees,-

4/ Back pay was provided to black persons 
employed by Gulf on July 2, 1965, whose seniority 
date anteceded July 1 , 1957, and to hourly 
rated women employed in Gulf's Package and Grease 
Department on July 2, 1965. (JA 28). The formula 
for back pay for black employees was $5.62 for 
each month of continuous service prior to January 
1, 1957, and $2.81 for each month of continuous 
service thereafter until termination or until 
January 1, 1971, whichever is earlier. (JA 
30). Back pay *for female employees was figured 
on the basis of $5.62 for each month of continuous 
service until termination or until July 1, 1975, 
whichever is earlier. Id.

5/ Black employees who were eligible for back 
pay and were presently employed in certain menial 
positions (Operator Helper No. 1, Boiler Washing 
"X," Brander "X," Operator Helper No. 2, Utility 
Helper, and Laborer) and women employees with 
seniority anteceding April 5, 1974, were made 
eligible for "affirmative action goals and time­
tables". (JA 32). The relief involved a goal to



- 5 -

and a general "affirmative action" provision.-  
The agreement required that employees accepting 
back pay execute releases of all employment 
discrimination claims against Gulf, and it estab­
lished a procedure for tender and acceptance of 
back pay (JA 31). The agreement further provided

5/ continued

fill one of every five vacancies in 43 "target 
classifications" (identified as classifications in 
which blacks, Spanish-surnamed persons and/or 
women were statistically underrepresented), and a 
goal to fill one of every seven official and 
manager category positions with a black, Spanish- 
surnamed or female employee until their respective 
representation jointly within such clasification 
equalled or exceeded their joint representation in 
the company's workforce. (JA 32-35).

6/ "[Gulf] agrees to refine and strengthen on a 
continuing basis positive and objective 
nondiscriminatory employment standards, 
procedures and practices and represents that 
in its business operations it exerts continu­
ing effort to uniformly apply such standards, 
practices, and procedures in a manner which 
will assure equal employment opportunites in 
all aspects of its total workforce and 
operation without regard to race, color, 
religion, sex or national origin."

(JA 38).



- 6 -

that failure to respond within thirty days to 
notice of the tender and the release agreement was 
to be deemed an acceptance of back pay. (Id.) 
However, the letter which Gulf sent to eligible
employees did not inform them that silence would

7 /be deemed an acceptance.—  Contrary to the 
terms of the agreement (JA 31), the letter did not 
disclose the formula used in calculating back pay. 
The letter admonished employees that, "Because 
this offer is personal in nature, Gulf asks that 
you not discuss it with others." Gulf represents 
that letters offering over $900,000 in back pay 
were sent to 614 black employees and former 
employees and 29 women employees immediately after 
the agreement was signed. (JA 22-23).

Neither the plaintiffs nor any members of the 
potential class were parties to the conciliation

7/ This letter is reproduced as Addendum A to 
this brief. Although the letter does not appear 
in the record as transmitted by the district 
court, that court referred to and briefly des­
cribed the letter in its order of June 22, 1976. 
(JA 128). The letter was also before the court of
appeals. See Brief for the United States as 
Amicus Curiae on Rehearing En_ Banc, p.6 and 
Exhibit 1. Therefore, the letter may properly be 
considered by this Court.



7

agreement, nor was the agreement subject to
any judicial review or approval. The plaintiffs
found the relief provided in the conciliation

8/agreement grossly inadequate.-  Under the agree­
ment a black employee who, like plaintiff Wesley

8/ In a memorandum filed in the district court, 
plaintiffs stated in part as follows:

"... [T]he agreement on its face does not 
appear to satisfy the dictates of Title VII. 
For instance, the Conciliation Agreement does 
not provide for well-established types of 
relief such as advance-level entry and job 
by-pass; there is a one-shot opportunity to 
bid and transfer into a different job class­
ification; there are no provisions for a firm 
recruitment program; there is no firm commit­
ment on goals and timetables; the affirmative 
action program is merely a statement of 
policy rather than a realistic, programmatic 
approach to the underutilization of minori­
ties in the defendant's work-force. The 
goals provided, one black, Mexican-American, 
or woman for each four whites selected for 
jobs from which blacks are underutilized (the 
goals is one to six for supervisory posi­
tions) is inadequate to remedy the practices 
of discrimination in an area where over 50% 
of the population is black; there is no 
relief from unlawful employment testing 
programs. These are only some of the ex­
amples of how the Agreement does not begin to



- 8 -

Bernard, had worked at Gulf's Port Arthur refinery
since June 1954, was entitled to a total "back
pay" settlement of approximately $640, less

J . 9/deductions for social security and income taxes.™
Therefore, plaintiffs filed this action in the
district court.

8/ cont inued

approach the relief requested by the plain­
tiffs. In fact, the settlement agreement 
simply does not satisfy the purpose underly­
ing fair employment litigation which is to 
make whole those persons injured by dis­
criminatory employment practices. Albemarle
Paper Co. v. Moody, 422 U.S. 405 (1975).

"Additionally, the notices that were 
sent out to back pay eligibles under the 
Conciliation Agreement did not explain the 
types and extent of relief in the agreement, 
and did not explain the method by which 
backpay was computed. Further, the affected 
employees were not told that acceptance of 
the agreement would be assumed if after the 
passage of thirty days, the employees had not 
responded to Gulf's notice...."

(JA 108, 109). See, infra n.67.

9/ See, supra, p. 4, n .4.



Plaintiffs' Complaint and Their Counsel

1 0 / .On May 18, 1976, plaintiffs-- filed this
suit as a class action in the United States 
District Court, Eastern District of Texas, Hon. 
Joe J. Fisher, Chief Judge, presiding. (JA 11). 
The complaint alleged that "[b]lack employees of 
Gulf Oil are, and have in the past, been victims 
of systematic racial discrimination" by Gulf and 
the unions. (JA 15);—  ̂ The relief sought by the

- 9 -

10/ Plaintiff Wesley P. Bernard was hired by the 
company in June 1954 as a laborer and at the time 
of filing was a truck driver. Plaintiff Elton 
Hayes, Sr. was hired in October 1946 as a laborer, 
worked in various "helper" positions and at the 
time of filing was a brickmaker. Plaintiff Hence 
Brown, Jr. was hired as a laborer in 1954 and at 
the time of filing was a truck driver. Plaintiff 
Willie Whitley was hired as a laborer in 1946 and 
retired as a utility man, a classification slight­
ly above laborer, in October 1975. Plaintiff 
Rodney Tizeno was originally hired as a laborer 
and at the time of filing was employed as a 
craftsman. Plaintiff Willie Johnson was hired as 
a laborer. (JA 13, 14). Plaintiff Whitley died 
in 1980.

11/ Among the areas in which discrimination was 
alleged were: hiring and initial job assignments;



- 10 -

complaint included recruitment of blacks and the 
following measures for incumbent employees: (a) 
use of company seniority in bidding for better 
paying and more desirable jobs; (b) restructuring 
lines of progression, revision of residency 
requirements, advanced level entry and job skip­
ping; (c) training; (d) back pay; (e) rate protec­
tion so black employees will not be deterred from 
advancement; (f) prospective "red circling" to 
alleviate the residual effects of discrimination; 
(g) suspension of all tests and other criteria for 
promotion and initial employment until the tests 
and criteria are validated; (h) requiring the 
local union to process grievances of its black 
members; and (i) a declaration that the acts and

11/ continued

use of unvalidated and discriminatory tests and a 
high school diploma requirement; exclusion from 
craft and journeymen positions; racially separate 
lines of progression, job classifications and 
departments; denial of promotional training 
opportunities; unequal pay for comparable work;
exercise of seniority rights; exclusion from 
supervisory, technical, professional and clerical
positions; discipline and discharge; and the 
acquiescence in or condoning of unlawful disc­
rimination by the unions. (JA 15-18).



11

practices complained of violate federal law. (JA 
18-20). The complaint also specifically prayed 
for an award of costs, including reasonable 
attorneys' fees pursuant to 42 U.S.C. § 2000e- 
5(k). (JA 20).

Plaintiffs and the potential class were 
represented by attorneys associated with the NAACP 
Legal Defense and Educational Fund, Inc. (herein­
after "NAACP Legal Defense Fund" or "LDF"), a 
non-profit corporation engaged in furnishing legal
assistance in cases involving claims of racial

12 /discrimination. (JA 111):—  Three of plaintiffs'

12/ The NAACP Legal Defense Fund, which is 
entirely separate and apart from the National 
Association for the Advancement of Colored People, 
has been approved by the Appellate Division of the 
State of New York to function as a legal aid 
organization. (Id.) This Court has recognized the 
LDF as having "a corporate reputation for expert­
ness in presenting and arguing the difficult 
questions of law that frequently arise in civil 
rights litigation" and engaged in "a different 
matter from the oppressive, malicious or avarici­
ous use of the legal process for purely private 
gain." NAACP v. Button, supra, 371 U.S. at 433. 
Employment discrimination cases in which LDF 
counsel have appeared in this Court include 
Griggs v. Duke Power Co., 401 U.S. 424 (1971);
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975);



12

counsel--Jack Greenberg, Barry L. Goldstein and
Ulysses Gene Thibodeaux— were employed by the Fund
as staff attorneys. (JA 81-82 n.l, 111, 115).
Stella M. Morrison of Port Arthur, Texas, and
Charles E. Cotton of New Orleans, Louisiana,
private practitioners with experience in fair
employment litigation, were associated with the
NAACP Legal Defense Fund as local counsel. (JA

13/81-82 n.l, 118).“  None of the attorneys has 
accepted or expects to receive any compensa­
tion from the named plaintiffs, from any plain­
tiffs who may be added, or from any members of the 
potential class. (JA 113, 119). Any counsel fees 
which they might obtain would come from an award

12/ continued

and Franks v. Bowman Transportation Co., 424 U.S. 
747 (1976). Attorneys employed by the LDF have
represented individuals in hundreds of civil 
rights cases in the Fifth Circuit and in the 
district courts of that Circuit. Mi 1ler v . 
Amusement Enterprises, Inc., 426 F.2d 534, 539
n.14 (5th Cir. 1970).

13/ See, NAACP v. Button, supra 371 U.S. at 421, 
nT5. Since 1976, Mr. Thibodeaux has gone into 
private practice in Lake Charles, Louisiana. 
He remains one of plaintiffs' counsel.



13

by the court which, as expressly prayed for in the 
complaint (JA 20), would be taxed against defen­
dants pursuant to 42 U.S.C. § 200Qe-5(k). (JA 
113, 119). Any award of fees to staff attorneys 
of the NAACP Legal Defense Fund would be paid over 
to LDF for support of its programs. (JA 113).

The May 28 Order

On May 22, 1976, four days after the com­
plaint was filed, the named plaintiffs held a 
meeting in Port Arthur which was attended by 
members of the potential class. (JA 115, 118). 
Three attorneys for the named plaintiffs and 
potential class accepted an invitation to attend 
the meeting to discuss issues in the suit, types 
of relief requested, and administrative and legal 
problems in fair employment litigation, and to 
answer questions about the suit and conciliation 
agreement. (JA 116).

Five days after the meeting, Gulf filed a 
short motion, unverified and unsupported by any 
sworn statement, to limit communications with any 
potential or actual class member. (JA 21). The



- 14 -

motion was filed in Judge Fisher's absence and 
sought entry of an order pending his return. In 
its supporting memorandum (JA 22), Gulf's counsel 
described the conciliation agreement, set forth 
Gulf's efforts to tender back pay awards and 
solicit releases, and announced that Gulf had 
suspended mailings to employees pending court 
action. Counsel also asserted, without identify­
ing any informant, that one of plaintiffs' counsel
made allegedly unethical and improper statements

14/at the May 22 meeting.— - The memorandum sought

14/ "... [0]n Saturday, May 22, 1976, four
days after the Complaint was filed in this 
action, an attorney for the Plaintiffs, Mr. 
Ulysses Gene Thibodeaux, appeared before 
approximately 75 actual or potential class 
members at a meeting in Port Arthur and 
discussed with them the issues involved in 
the case and recommended to those employees 
that they not sign the receipt and general 
release which has been mailed to them pur­
suant to the Conciliation Agreement. In 
fact, it is reported to Gulf that Mr Thibo­
deaux advised this group that they should 
mail back to Gulf the checks they had 
received since he could recover at least 
double the amount which was paid to them



15

entry of a proposed order limiting communication
15/in order to "preserve the status quo."— ■ Gulf's 

proposed order was taken verbatim from "Sample 
Pretrial Order No. 15: Prevention of Potential
Abuse of Class Action," Manual for Complex and 
Multidistrict Litigation (1970) p. 197. (Id.)-i^
Plaintiffs had no opportunity to submit contraven­
ing proof or to reply prior to the court's order.

The next day, District Judge William M. 
Steger granted the motion and entered Gulf's

14/ continued

under the Conciliation Agreement by prosecut­
ing the present lawsuit."

(JA 23, 24).

15/ Although Gulf now characterizes its motion as 
an "emergency" motion, Br. p. 5, none of the 
requisites for affidavit or verified pleading,
hearing or notice for either a temporary restrain­
ing order or preliminary injunction were pleaded 
or supplied. Rule 65, Fed. R. Civ. Pro.

16/ Attached to the memorandum were the concilia­
tion agreement and a letter from company counsel 
suspending further mailing of checks and other 
contacts pursuant to the conciliation agree­
ment. (JA 26, 43).



- 16 -

proposed order ex parte. (JA 1).-— ■ By its 
terms, the order forbade, without exception, all 
communications by parties or their counsel with 
any class member pending Judge Fisher's return. 
The text of the order is set forth in the Joint 
Appendix at pages 44-45. The order states that 
parties and their counsel "are forbidden directly 
or indirectly, orally or in writing, to commu­
nicate concerning such action with any potential 
or actual class members not a formal party to the 
action." Id_. The forbidden communications 
included, but were not limited to, (a) solicita­
tion of legal representation, (b) solicitation of 
fees, expenses and arrangements to pay fees and ex-

17/ Gulf no longer maintains that the May 28 
or*der was entered "without formal objection by 
Respondents." Compare, Petition for a Writ of 
Certiorari, p. 7, with, Br, p 5. Gulf represented 
in both courts below that Judge Steger's order was 
issued after hearing argument of counsel for 
plaintiffs and the company. (See, e.g., JA 48, 
202). However, the record shows that the motion 
was granted ex parte with no argument or hearing. 
(JA 3). Plaintiffs filed a memorandum of law in 
opposition to the motion on June 10, 1976, only 
after receipt of notice of the court's order 
and, indeed, after the filing of Gulf's subsequent 
motion to modify the order. (JA 46). See,
JA 4, 80.



17 -

penses, (c) solicitation to opt out of Rule
23(b)(3) actions, and (d) communications "which 
may tend to misrepresent the status, purposes and 
effects of the class action, and of impressions 
tending, without cause, to reflect adversely on 
any party, any counsel, the Court, or any adminis­
tration of justice." (Id.) No findings of fact 
or conclusions of law were made, and the Fifth 
Circuit considered Gulf's allegations of abuse 
"irrelevant." (JA 195 n.14, 209-210 and n.9, 241 
and n .7 0).

The June 22 Order

On June 8, 1976, Gulf filed a motion to 
modify the May 28 order'"to allow Gulf to comply 
with the terms of the Conciliation Agreement . . . 
by resuming under the Court's supervision the 
payment of back pay awards to employees covered by 
the Conciliation Agreement and obtaining from 
those employees receipts and releases all as 
provided for by the terms of the Conciliation 
Agreement." (JA 46). The supporting memorandum 
reiterated statements "reported to Gulf" about 
plaintiffs' counsel at the May 22 meeting, and



- 18 -

added that: "In fact, it is reported that Mr.
Thibodeaux stated even if the employee had signed 
the receipt and release, he should now return the 
check which had been mailed to the employee by 
Gulf." (JA 47). Again, Gulf declined to provide 
any support for its hearsay allegations. However, 
Gulf did again attach the conciliation agreement 
and, in addition, the sworn affidavits of offi­
cials of the EEOC and Department of the Interior. 
(JA 71, 76) . —

On June 11, 1976, the district court heard
argument of counsel, but heard no witnesses and 
took no evidence. (See, JA 203, 235). Thereafter, 
Gulf submitted a supplemental legal memorandum, 
a copy of the Manual for Complex Litigation 
(1973), Part II, § 1.41 Sample Pretrial Order No. 
15, and a proposed order. (JA 92, 97, 99).
Plaintiffs filed affidavits of counsel, which

18/ The officials, who participated in the 
negotiation of the conciliation agreement, stated 
that, in their opinion, the agreement was a 
thorough and effective solution to charges that 
Gulf discriminated at its Port Arthur refinery in 
violation of Title VII, and that Gulf should be 
allowed to proceed with completing back pay awards 
and receiving releases under the conciliation 
agreement. (Id.)



19

stated that plaintiffs were represented by counsel
associated with the NAACP Legal Defense Fund,
explained the nature of the Fund's work, and
stated that the only compensation plaintiffs'
counsel expected would be through statutory
taxation of costs and fees. (JA 107, n.l, 111,
115, 118). The affidavit of Mr. Thibodeaux
directly contravened Gulf's account of his state-

19/ments at the May 22 meeting.—  The affidavit of 
Ms. Morrison, another of plaintiffs' counsel who 
attended the meeting, corroborated Mr. Thibo­
deaux's affidavit. (JA 118). Counsel also 
averred that to date 34 individual members of the 
class had signed retainer agreements with plain-

19/

"7l. Contrary to the Company's assertion in 
its memoranda filed on May 27 and June 8, 
1976, I did not at any time during the course 
of the meeting advise actual or potential 
class members not to accept the defendant's 
offer of settlement, nor did I state to the 
assembled group that counsel for the plain­
tiffs could obtain twice the amount of 
backpay for the class as has been offered to 
them under the Conciliation Agreement 
of April 14, 1976."

(JA 116).



- 20 -

tiffs' counsel to represent them in the litiga­
tion. (JA 119).

The affidavits of plaintiffs' counsel
stated that communication with potential class
members was necessary for effective representation
of claims of class members, defining the scope of
the issues, investigating claims of systematic and
individual discrimination, preparing witnesses,
supplementing available documentary materials and
completing discovery, and generally informing
class members of their rights and answering

20 /questions. (JA 113, 114, 116, 117).—
On June 22, 1976, the district court modified 

the May.28 order, and adopted Gulf's proposed 
order based on the Manual for Complex Litigation. 
The June 22 order restrained communications by 
the parties and their counsel with members of the 
potential class, while authorizing the clerk of 
court to send a notice to class members offering

20/ Plaintiffs also addressed Gulf's claim that 
the conciliation agreement was a thorough and 
effective resolution of employment discrimination 
at the Port Arthur refinery. See, supra, pp. 7-8, 
n. 8.



- 21 -

back pay and soliciting releases under the con­
ciliation agreement. The complete text of the 
order is reprinted in the Joint Appendix at pages 
124-127, 189-191, n.9, and 236-238, n.4. The 
order reiterated the prohibition in the May 28 
order, see, supra, at pp. 16-17, with two excep­
tions, viz., communications initiated by a client 
or prospective client, and communications by a 
public office or agency which do not have the 
effect of solicitation of representation or 
misrepresenting the action or orders. The order 
also provided that:

"If any party or counsel for a party 
asserts a constitutional right to communicate 
with any members of the class without prior 
restraint and does so communicate pursuant 
to that asserted right, he shall within five 
days after such communication, file with the 
Court a copy of such communication, if in 
writing, or an accurate and substantially 
complete summary of the communication if 
oral."

(JA 125).

The court, relying on the Manual for Complex Liti­
gation, rejected the contention that the restraint 
of communications was unconstitutional. The order 
also provided that Gulf be allowed to proceed with



- 22 -

the payment of back pay awards and obtaining of 
receipts and releases from those employees covered 
by the conciliation agreement and that the clerk 
of court mail an attached notice to each covered 
employee concerning acceptance of the offer within 
45 days, and the order set forth a timetable for 
employee acceptances and for Gulf's reporting of 
acceptances.

The basis for entry of the order was not 
explained and no findings of fact or conclu­
sions of law were made. "We can assume that the 
district court did not ground its order on a 
conclusion that the charges of misconduct made by 
Gulf were true. Nothing in its order indicates 
that it did, and, if it did, such a conclusion 
would have been procedurally improper and without 
evidentiary support." (JA 241) (Fifth Circuit en 
banc opinion).— —^

21/ Petitioners erroneously refer to certain 
""Facts supporting entry of the order." Br. pp. 
22-23 and n.18, p. 25.

Judge Godbold noted that "Gulf restates 
hearsay as though it were fact proved and found." 
(JA 210, n .9). In this Court, Gulf continues 
to reiterate the alleged statements of plaintiffs' 
counsel. See, Br., pp. 5, 23 and n.18. The



23

The August 10 Order
The broad scope of the June 22 order was soon 

confirmed. On July 6, 1976, plaintiffs moved (a) 
for permission for themselves and their counsel to 
contact and interview members of the proposed 
class, and (b) to declare that an attached leaflet 
is "within the constitutionally protected rights 
of the plaintiffs and their counsel" and to permit 
its dissemination within the 45 day period allowed 
for members of the class to respond to the con­
ciliation agreement tender pursuant to the June

21/ cont inued

unsworn hearsay was rebutted by direct affidavit, 
which was the* only evidence before the court. 
Gulf could have, but did not, present any counter­
vailing proof.

The suggestions that the June 22 order was 
issued upon a complete record showing the class 
action process was threatened by abuse and after a 
hearing, see, Br, p. 22 and n.16, are also 
erroneous. Of the five affidavits submitted, the 
only affidavits on abuse were those of plaintiffs' 
counsel, which demonstrated that no unethical or 
improper conduct had occurred or was likely to 
occur. See, supra at p. 19. There was no evi­
dentiary hearing. The district court merely heard 
oral argument by counsel, and Gulf never produced 
any evidence to substantiate its unsworn hearsay 
allegations. See, supra at p. 18.



- 24

22 order. (JA 130-131). The leaflet, inter alia, 
advised Gulf's black employees to consult a lawyer 
about the conciliation releases, offered the 
names, addresses and telephone numbers of several 
of plaintiffs' counsel for free consultation, and 
described the lawsuit. The original leaflet is 
reproduced in Addendum B to this brief.

Plaintiffs' motion for permission to communi­
cate with the proposed class was denied on August 
10, 1976, two days after the 45 day period for 
acceptance of back pay tenders had expired. (JA 
157, see, 208, 236). The district court's order 
consisted of one sentence stating "that the Motion 
is hereby denied." (JA 157). No findings of fact 
or conclusions of law were made.

Other Proceedings
On January 11, 1977, the district court 

granted summary judgment for Gulf and the unions, 
dismissing the complaint as untimely. (JA 170). 
On appeal, a panel of the Fifth Circuit unanimous­
ly reversed the dismissal of the complaint but, by 
a divided court, affirmed the orders restraining



25

communications. (JA 175). Judge Godbold filed an 
extensive dissent on the communications issue. 
(JA 199).

On rehearing eii banc, the Fifth Circuit, in 
an opinion authored by Judge Godbold, adopted the 
panel opinion insofar as it reversed the district 
court's dismissal of the complaint. (JA 231, 
234). By a vote of twenty-one to one, the en banc
court also reversed the orders restraining commu­
nications. (Id.) Thirteen members of the court 
held that the orders violated both the First 
Amendment and Rule 23, Fed. R. Civ. Pro. (Id.) 
Eight judges, agreeing that the orders were not
authorized as "appropriate order[s]" under Rule 
23, did not reach the constitutional issue. (JA 
269, 276).

On December 8, 1980, the Court granted a writ 
of certiorari limited to the question of the 
validity of the orders restraining communications.

SUMMARY OF ARGUMENT

1. Communication by plaintiffs and their 
counsel with potential class members in a civil 
rights action, like other "'collective activity



26

undertaken to obtain meaningful access to the 
courts [,] is a fundamental right within the 
protection of the First A m e n d m e n t . In re Primus, 
436 U.S. 412, 426 (1978). Indeed, the right was 
first recognized in NAACP v. Button, 371 U.S. 
415 (1963), in the context of communication
by NAACP and NAACP Legal Defense Fund lawyers 
with putative plaintiffs concerning their par­
ticipation in potential civil rights class 
action lawsuits.

2. The district court's orders restrain­
ing communication by plaintiffs and their counsel 
with the potential class were entered without any 
proof of actual or imminent specific misconduct 
or other injury. First Amendment rights cannot 
be impaired without such a threshold showing. 
The Manual for Complex Litigation simply does not 
provide particularized proof of misconduct ade­
quate to justify any infringement.

3. The orders barring communication are
unjustified prior restraints of protected ex­
pression and association. The provision in 
the June 22, 1976, order for assertion of "a
constitutional right to communication" on pain



27

of criminal contempt does not require a different 
result because the orders remain a system of 
prior restraint which substantially burdens 
exercise of protected liberties.

4. The district court’s orders are over­
broad restraints in violation of the First Amend­
ment rule that ”[p]recision of regulation must be 
the touchstone in an area so closely touching our 
most precious freedoms." NAACP v. Button, 371 
U.S. 415, 438 (1963).

5. In addition, the orders restraining 
communication compromised the integrity of the 
proceedings, and denied important rights of 
plaintiffs and the potential class guaranteed by 
the due process clause of the Fifth Amendment. In 
particular, adequate information, effective 
assistance of counsel, and an adequate hearing and 
procedural regularity were denied in violation of 
the Fifth Amendment.

6. Last, the district court's gag orders 
impede the prosecution and processing of class 
actions and, therefore, are inconsistent with Rule 
23 of the Federal Rules of Civil Procedure, which 
permits only "appropriate order[s],f to be issued. 
Rule 23(d). The orders forbade plaintiffs and 
their counsel from engaging in activities "direct­



- 28 -

ed toward effectuating the purposes of Rule 23 by 
encouraging common participation in the litigation 
of ... discrimination claim[s]." Coles v. Marsh, 
560 F . 2d 186, 189 (3d Cir.), cert, denied, 434 
U.S. 985 (1977). Moreover, Rule 23 should be 
construed to avoid grave doubts of unconstitu- 
t ionality.

ARGUMENT

The record below is a virtual catalogue of 
the disruption that can be caused in Rule 23 
actions by orders and local rules such as those 
recommended by §1.41 of the Manual for Complex 
Litigation, restraining communication by plain­
tiffs and their counsel with members of the

2 2 / . .potential class.—  The ability of plaintiffs

22/ The Manual for Complex Litigation (1978), 
prepared by a Board of Editors for the Federal 
Judicial Center and Judicial Panel on Multidis­
trict Litigation, is reprinted in 1 Pt. 2 Moore's 
Federal Practice (2d ed. 1980) (hereinafter "Manu­
al"). The Manual's Suggested Local Rule No. 7 and 
Sample Pretrial Order No. 15 are substantially 
identical. See, Manual, Pt. II, 225-228. The 
Manual is presently being revised. See Res­



- 29

and counsel to prosecute, and proper judicial 
management of the action both were grievously 
impaired.

The issue is not whether courts are powerless
23/to deal with misconduct by counsel.-— ■ The 

record reveals no findings of misconduct, and 
petitioners' unsupported allegations, reiterated 
here, were properly treated by all the Fifth 
Circuit opinions as "irrelevant." Nor is the 
Court presented with orders "drawn as narrowly 
as possible," Br, p. 8. The plain terms and 
operation of the orders simply explode such a

22/ continued

pondents' Brief in Opposition to the Petition, pp. 
18-19. Although a local rule is not before the
Court, the same analysis under the Constitution 
and the Federal Rules of Civil Procedure applies 
to both rules and orders. See, JA 241 n.6, 252 n. 
22 (Fifth Circuit en banc opinion).

23/ Where there has been misconduct by counsel, 
" [t ]he ordinary remedy is disciplinary action 
against the lawyer and remedial notice to class 
members." Halverson v. Convenient Food Mart, 
Inc., 458 F .2d 927, 932 (7th Cir. 19721.



- 30

characterization. The May 28 order prohibited 
"all" communication by its terms and effect. 
See, supra at 16. The June 22 order prohibit­
ed "all" communications with four exceptions, but 
only one, the provision for "assert[ing] a 
constitutional right to communicate" as peti­
tioners recognize, Br, p. 10, is of any conceiv-

24/able significance here.—  The scope of the 
undefined protection offered by the provision is 
uncertain, and any possibility that the June 22 
order could be saved by any such "escape hatch" 
was ruled out by the order of August 10 flatly 
denying any right to communicate with the class 
members. See, supra at pp. 23-24.

Nor is the Court presented with restraints 
based on "an overriding interest articulated 
in findings ..." Richmond Newspapers, Inc, v. Vir­
ginia, U.S. , 65 L.Ed. 2d 973, 992 (1980). 
Although petitioners attempt to fill the gap by 
variously suggesting that the orders were issued

24/ Petitioners advance no reason why the May 
T8 order was proper even though its ban on commu­
nications was the very kind of formal absolute 
prior restraint which they argue the June 22 order
is not. Br, p. 10.



31

to "monitor" communications, to prevent generalized 
"threatened abuse" of the class action device or 
to forestall unspecified "misrepresentation," 
e.g. , Br, pp. 17-26, the orders stated no purpose 
and none of the purposes now attributed to the 
district court have record support. Because 
plaintiffs and their counsel were completely 
gagged, a_ fortiori, no monitoring of their 
communication occurred. The district court's 
denial of plaintiffs' motion to communicate 
about pending back pay tenders and waivers was 
denied two days after the termination of the 
period for acceptance by the class members. Not 
only were no findings made, but no basis exists 
for finding any threat of abuse or misrepresenta­
tion. See, supra at pp. 14-19.

Petitioners' case boils down to the naked 
claim that "the very nature of the unique class 
action device creates sufficient justifica­
tion for the entry of the order[s]." Br, p. 11. 
Plaintiffs' efforts to bring to the court's 
attention the adverse impact of its orders on the 
processing of the action were necessarily unavail­
ing because the orders were not bottomed on



- 32

specific circumstances. They are restraints 
derived from §1.41 of the Manual, which recommends 
that in all class action suits, whether certified 
or not, communications by parties or counsel with 
actual and potential class members should be 
restricted. Id. at 31-32. The basis for this 
recommendation is the Manual's conclusion that 
"[t]he class action under Rule 23 is subject to 
abuse, intentional and inadvertent, unless proce­
dures are devised and employed to anticipate 
abuse." Id. at 31. The Manual, however, concedes
that abuse is the "exception rather than the rule"

23 /and "relatively rare."—
Petitioners ' brief invites this Court merely 

to sanction the exercise of Rule 23(d) supervisory

25/ "It must be noted, however, that generally the 
experience of the courts in class actions 
has been favorable. The aforementioned 
abuses are the exceptions in class action 
litigation rather than the rule. Neverthe­
less, they support the idea that it is 
appropriate to guard against the occurrence 
of these relatively rare abuses by local rule 
or order."

Manual at 36-37. As we demonstrate later, this line 
of reasoning has no support in the jurisprudence 
of this Court. See, part I of the argument.



33

power. Br, p. 14. This characterization ignores 
that the communication subject to restraint is 
protected by the Constitution. Plainly, govern­
ment "cannot foreclose the exercise of constitu­
tional rights by mere labels" and "may not 
under the guise of prohibiting professional 
misconduct, ignore constitutional rights." NAACP 
v. Button, supra, 371 U.S. at 429, 439. The Court 
has

"repeatedly held that laws which actually 
affect the exercise of these vital rights 
cannot be sustained merely because they were 
enacted for the purpose of dealing with some 
evil within [governmental] competence, or 
even because the laws do in fact provide a 
helpful means of dealing with such an evil 
... [B]road rules framed to protect the 
public and to preserve respect for the 
administration of justice can in their actual 
operation significantly impair the value of 
associational freedoms."

United Mine Workers v. Illinois Bar Association,
~ —  '  ,  167389 U.S. 217, 222 (1967).—

26/ First Amendment freedoms are protected "not 
only against heavy-handed frontal attack, but also 
from being stifled by more subtle governmental



- 34 -

I
THE ORDERS RESTRAINING COMMUNICATION DENIED 
PLAINTIFFS, THEIR COUNSEL AND POTENTIAL CLASS 
MEMBERS MEANINGFUL ACCESS TO THE COURTS IN 
VIOLATION OF THE FIRST AMENDMENT.

A. Expression and Association To Advance
Litigation Are Rights Protected by 
the First Amendment.

1. The Principle of NAACP v. Button

The Court has recently reaffirmed the princi­
ple, first recognized in NAACP v. Button, supra, 
that "'collective activity undertaken to obtain 
meaningful access to the courts is a fundamental 
right within the protection of the First Amend­
ment."' In re Primus, supra, 436 U.S. at 426, 
quot ing United Transportation Union v. State Bar 
of Michigan, 401 U.S. 576, 585 (1971). "[Ab­
stract discussion is not the only species of com­
munication which the Constitution protects; the

26/ continued

interference." Bates v. Little Rock, 361 U.S. 
516, 523 (1960); see, Shelton v. Tucker, 364
U.S. 479 (1960); Gibson v. Florida Legislative
Investigation Comm., 372 U.S. 539 (1963).



- 35

First Amendment also protects vigorous advocacy, 
certainly of lawful ends, against government 
intrusion." Button, supra, 371 U.S. at 429.

The right of association for litigation was 
recognized in Button in the context of communica­
tion by NAACP and NAACP Legal Defense Fund attor­
neys with potential civil rights plaintiffs, both 
members and non-members. One purpose of the 
communication was to provide information about 
participation in class action challenges to public 
school segregation. The Court held that these 
communications are not unlawful and unethical 
solicitation of legal representation. 371 U.S. at 
428-29.

"In the context of NAACP objectives, litiga­
tion is not a technique for resolving private 
differences; it is a means for achieving the 
lawful objectives of equality of treatment by 
all government, federal, state and local, 
for the members of the Negro community in 
this country. It is thus a form of political 
expression. Groups which find themselves 
unable to achieve their objectives through 
the ballot frequently turn to the courts. 
Just as it was true for the opponents of New 
Deal legislation during the 1930's, for 
example, no less is it true of the Negro



- 36

minority today. And under the conditions 
of modern government, litigation may well be 
the sole practicable avenue open to a minor­
ity to petition for redress of grievances."

371 U.S. at 429-30.
Traditional rules against solicitation do not 

apply to "wholesome and beneficial" public in­
terest litigation where legal services are offered 
to clients free of charge. See, e.g. , ABA Com­
mittee on Professional Ethics and Grievances, 
Opinions, No. 148, 1935 (1957), cited by Button,
371 U.S. at 430 n. 13, 440 n. 19, 443 n. 26.--
Button specifically ruled that the "superficial 
resemblance in form" between unethical arrange­
ments for private gain which served no public 
interest, and the activities of NAACP and NAACP 
Legal Defense Fund lawyers

27/ Opinion 148 approved the Liberty League's 
program of assisting litigation challenging New 
Deal legislation through a National Lawyers 
Committee which sought to disseminate through 
public media communications on the constitu­
tionality of state and federal legislation, and to 
offer counsel, without fee or charge, to anyone 
financially unable to retain counsel who felt that 
such legislation violated his constitutional 
rights. See other authorities cited in Button, 
371 U.S. at 440 n.19.



- 37

"cannot obscure the vital fact that here 
the entire arrangement employs constitutionally 
privileged means of expression to secure consti­
tutionally guaranteed civil rights.

*  *  *

"Resort to the courts to seek vindication 
of constitutional rights is a different matter 
from the oppressive, malicious, or avaricious 
use of the legal process for purely private
gain."

371 U.S. at 442-43.
Efforts to confine the scope of the Button 

doctrine have been uniformly denied. Thus, 
it was recognized that "the First Amendment's 
guarantees of free speech, petition and assembly 
give railroad workers the right to gather together 
for the lawful purpose of helping and advising 
one another in asserting the rights Congress gave 
them in the Safety Appliance Act [45 U.S.C. §1 et 
seq.] and the Federal Employers' Liability Act [45 
U.S.C. §51 et_ seq.]." Brotherhood of Railroad 
Trainmen v. Virginia, 377 U.S. 1, 5 (1964).
Unlike the precise facts in Button, the legal



» 38

rights involved were statutory, and the union 
recommended outside counsel whom it did not employ 
itself. Nevertheless, the Court held that "the 
Constitution protects the associational rights of 
the members of the union precisely as it does 
those of the NAACP." 377 U.S. at 8.-^^ United 
Mine Workers v. Illinois Bar Association, 389 U.S. 
217 (1967), declined to limit the Button principle 
to prohibit union members from collectively hiring 
an attorney to litigate damage claims for personal 
injury and death under a state workers compensa­
tion act. A state court's order barring, inter 
alia, a union's efforts to limit the fee charged 
by recommended attorneys in damage suits to a 
percentage of recovery under the Federal Employ­
ers ' Liability Act, was reversed in United Trans­
portation Union v. State Bar of Michigan, 401 U.S. 
576 (1971). Again, the Court asserted that "the 
principle here involved cannot be limited to the

28/ "The State can no more keep these workers 
from using their cooperative plan to advise 
one another than it could use more direct 
means to bar them from resorting to the 
courts to vindicate their rights. The right 
to petition the courts cannot be so handi­
capped." 377 U.S. at 7.



- 39 -

facts of this case. At issue is the basic right 
to group legal action ..." 401 U.S. at 585.

The principle of Button and its progeny was 
recently affirmed in In re Primus, 436 U.S. 412 
(1978), where the Court reversed the disciplining 
of an attorney who advised a lay person of her 
legal rights concerning her sterilization. 
Counsel had sent a letter offering free legal 
assistance on behalf of the American Civil 
Liberties Union, a non-profit orginization with 
which the lawyer was affiliated, in order to bring 
a class action. Primus understood Button and 
subsequent decisions as having established the 
principle that association and expression on 
behalf of litigation are fundamental First Amend­
ment rights.

"Without denying the power of the State to 
take measures to correct the substantive 
evils of undue influence, overreaching, 
misrepresentation, invasion of privacy, 
conflict of interest, and lay interference 
that potentially are present in solicitation 
of prospective clients by lawyers, this Court 
has required that 'broad rules framed to 
protect the public and to preserve respect 
for the administration of justice' must not
work a significant impairment of 'the value 
of associational freedoms.'"



- 40

436 U.S. at 426, quoting Mine Workers, supra, 389 
U.S. at 222. The Court rejected efforts to limit 
the group litigation principle, by declining to 
distinguish Button because the ACLU might benefit 
financially from the litigation by a possible 
statutory award of attorneys' fees. 436 U.S. at 
427-431.— /

Petitioners, however, do not acknowledge 
the "fundamental" nature of the right. Their 
characterization of the "generalized first 
amendment concerns of parties and their counsel" 
(Br, p. 10) deprecates Button and its progeny, and 
blinks at reality. The right of association and 
expression for litigation is not some abstract

29/ The Court ruled that "the ACLU's policy 
of requesting an award of counsel fees does not 
take this case outside of the protection of 
Button." 436 U.S. at 429. The opinion relied 
on the fact that the NAACP and the NAACP Legal 
Defense Fund (the organizations involved in 
Button) often request fees. The Court noted that 
"differences between counsel fees awarded by a 
court and traditional fee-paying arrangements ... 
militate against a presumption that ACLU sponsor­
ship of litigation is motivated by considerations 
of pecuniary gain rather than by its widely 
recognized goals of vindicating civil liberties." 
Id. at 429-430. For LDF lawyers, as well as ACLU



- 41

privilege of no significant moment: its denial 
infringes "the right of individuals and the public 
to be fairly represented in lawsuits authorized by 
Congress to effectuate a basic public interest." 
Brotherhood of Railroad Trainmen v. Virginia, 
supra, 377 U.S. at 7. In the instant case, 
prohibiting communication by plaintiffs and NAACP

29/ continued

lawyers, "[cjounsel fees are awarded in the 
discretion of the court; awards are not drawn from 
the plaintiff's recovery, and are usually premised 
on a successful outcome." Ld_. at 430. The 
provision for statutory awards of attorney's fees 
from defendants distinguishes this litigation from 
contingency fee litigation in which fees are paid 
from the recovery. In the latter case, an incen­
tive to enlarge the class may exist because of 
"the prospect of reducing [plaintiffs'] costs of 
litigation, particularly attorney's fees, by 
allocating such costs among all members of the 
class who benefit from any recovery." Deposit 
Guaranty Nat'l. Bank v. Roper, 445 U.S. 326, 338
n.9 (1980). Moreover, in civil rights cases the 
size of the class ordinarily has no bearing on the 
amount of fees, see, Zarate v, Younglove, 8 6  

F.R.D. 80, 98 (C.D. Cal. 1980), which depends on 
statutory criteria. See, e.g., Copeland v. 
Marshall, 24 EPD 131,219 (D.C. Cir. 1980) (en 
banc); Northcross v. Board of Education, 611 F .2d 
624, 632 et seq. (6 th Cir. 1979), cert, denied, 
100 S. Ct. 2999, 3000 (1980). ~



- 42 -

Legal Defense Fund counsel with potential class 
members impaired the plaintiffs' right to be 
"fairly represented," barred LDF attorneys 
from effectively prosecuting the action and 
from dissemination of critical information about 
the lawsuit and conciliation agreement to similar­
ly situated black persons, and altogether denied 
the potential class "meaningful access to the 
courts." Button, 377 U.S. at 426. It is a 
"commonsense proposition" that such activity is
protected. United Transportation Union v. State

30 /Bar of Michigan, supra, 401 U.S. at 5 80.— -
Petitioners argue that the Button principle 

does not apply because "the order was entered 
during ongoing litigation." Br, p. 29 n.29. 
This contention, like those rejected in the union

30/ The purported conflict between the "competing 
values" of First Amendment command and a court's 
authority to impose broad prior restraint to
protect against potential abuse (Br, p. 10) was 
resolved in Button and its progeny. "[W]e look at 
the [order] like we look at a statute, and if upon 
its face it abridges rights guaranteed by the 
First Amendment, it should be struck down." 
United Transportation Union, supra, 401 U.S. at 
581.



- 43

referral cases and In re Primus, seeks to distin­
guish Button on its facts. But the constitutional 
right, as this Court has repeatedly said, is a 
broad protection for "collective activity under­
taken to obtain meaningful access to the courts," 
and "the basic right to group legal action." 
United Transportation Union, supra, 401 U.S. at 
585 (emphasis added). Nothing in the nature of 
the right to associate for litigation suggests 
that it terminates with the filing of the 
action. Indeed, the practical need for communica­
tion to prosecute, advance and develop litigation 
increases rather than diminishes with the filing 
of an action. See part II of the argument.

Moreover, in the instant case the prohibited 
communications were with potential class members 
who had to make a choice to participate in the 
lawsuit or to accept back pay under the concilia­
tion agreement. Such persons in substance 
are in the same position as the potential plain­
tiffs in Button, the union members in the post- 
Button^ cases, or the potential plaintiff in In re 
Primus. Congress has determined that when a civil 
rights plaintiff obtains relief "he does so not 
for himself alone but also as a "private attorney-



- 44 -

general,' vindicating a policy that Congress
considered of the highest priority." Newman v .
Piggie Park Enterprises, Inc., 390 U.S. 400, 401,
402 (1968); Trafficante v. Metropolitan Life
Insurance Co., 409 U.S. 205, 211 (1972); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 415 (1975).
Congress has therefore provided the courts with

3 1 /broad remedial powers— ■ and has authorized
awards of counsel fees to encourage private

32/attorney general enforcement of civil rights.——
The Button principle has been applied outside

33/the civil rights and civil liberties areas.——

31/ Section 706(g) of Title VII, 42 U.S.C.
J2000e-5(g). See, Pranks v. Bowman Transporta­
tion Co., 424 U.S. 747, 763-764 (1976).

32/ Section 706(k) of Title VII, 42 U.S.C.
T2000e-5(k); Civil Rights Attorneys' Fees Awards
Act of 1976, 42 U.S.C. §1988. See, Christiansburg 
Garment Co. v. EEOC, 434 U.S. 4X2 (1978); Newman
v. Piggie Park Enterprises, Inc., supra; see 
generally, S"I Rep. No. 94-1011, The Civil Rights 
Attorneys' Fees Awards Act of 1976, 94th Cong., 
2d Sess. (1976).

33/ See, Brotherhood of Railroad Trainmen, supra 
(Safety Appliance Act and FELA); United Mine 
Workers, supra (state workers' compensationlaw);



- 45

The instant litigation therefore is well within 
the core of protected activity.

B . The Orders Infringe Upon First Amendment
Rights Without Requisite Proof Of 
Misconduct.

1. Absence of Proof of Misconduct

At a minimum, the First Amendment rights at 
stake cannot be infringed without proof of

33/ continued

United Transportation Union, supra (FELA). 
Although this Court need not decide the question, 
the right of associational activity in support of 
litigation should apply to any controversy proper 
for judicial resolution. Although this is 
an action for equitable relief, and not a damage 
suit, there is no distinction for purposes of 
associational rights since either form of relief 
may constitute proper enforcement of public 
policy. See, Button, supra (equitable school 
desegregation action); Brotherhood of Railroad 
Trainmen, supra; United Mine Workers, supra; 
United Transportation Union, supra; In re Primus, 
supra (damage suits).



- 46

specific misconduct. However, "[n]othing that
this record shows as to the nature and purpose of
NAACP [Legal Defense Fund] activities permits an
inference of any [conduct] injurious" to the
processing of the lawsuit. NAACP v. Button,

34/supra, 371 U.S. at 444.— '
Reciting "potential abuse" cannot cure the 

constitutional defect.
"[L]aws which actually affect the exercise of
these vital rights cannot be sustained merely 
because they were enacted for the purpose 
of dealing with some evil within ... [govern­
mental] competence, or even because the 
laws do in fact provide a helpful means for 
dealing with such an evil."

United Mine Workers, supra, 389 U.S. at 222.
"Rights of political expression and association 
may not be abridged because of ... interests 
asserted by appellate counsel without substantial

34/ Accord, United Transportation Union, supra, 
401 U.S. at 5"84 ("The record is devoid of any 
evidence or allegation of ['practicing law'] on 
the part of the Union or its members. A decree 
must relate specifically and exclusively to the 
pleadings and proof.").



- 47

support in the record or findings of the ... 
court." In re Primus, supra, 436 U.S. at 434, 
n.27. The application of narrowly drawn rules is 
proper "to proscribe solicitation that in_ fact is 
misleading, overbearing, or involves other fea­
tures of deception or improper influence." Id. at 
438 (emphasis added)

" [ T ] o the extent that the district court 
is empowered to restrict certain communications 
in order to prevent frustration of the provisions 
of Rule 23, it may not exercise the power with­
out a specific record showing by the moving 
party of the particular abuses by which it is
threatened." Coles v. Marsh, supra, 560 F.2d at

3 6 /189 (decided on Rule 23 grounds).-- Not only

35/ Accord, Richmond Newspapers, Inc, v. Virgi­
nia, supra, 65 L.Ed.2d at 992; First National Bank 
of Boston v. Bellotti, 435 U.S. 765, 789-790 
(1978); Wood v. Georgia, 370 U.S. 375, 388 (1962); 
Bridges ~  California, 314 U.S. 252, 271 (1941).

36/ Compare, JA 271-272 (Tjoflat, J., speci­
ally concurring in the decision of the Fifth 
Circuit en banc):

"[IIssuance of an order .. without an ade­
quate statement of the reasons for the order 
does not meet minimum standards of procedural



- 48 -

did petitioners here not present any proof of 
misconduct or threatened misconduct, they did not 
specify any discrete harm at all to the proces­
sing of the class action. All that was relied on 
were unspecific and speculative claims of "threat­
ened abuse" and "misrepresentation." See, supra 
at pp. 14-19.

Indeed, the only harm to the class action 
was done by the orders barring communications. 
See, JA 213-214 (Godbold, J. , dissenting from 
the panel decision).

2. The Manual for Complex Litigation

Nor can the vacuum caused by the absence of 
specific factfinding be filled by the recommenda­
tions of the Manual, which asserts that associa­
tion and expression may be restrained across-the-

36/ continued

fairness and regularity ... Nor does an 
order issued without a deliberate articula­
tion of its rationale, including some ap­
praisal of the factors underlying the court's 
decision, allow for a disciplined and in­
formed review of the court's discretion."

Sargeant v. Sharp, 579 F.2d 645, 647 (1st Cir.
1978) (citationsomitted).



- 49

board in every class action notwithstanding the
circumstances in a particular case. The Manual,
at 31, concludes that broad prior restraint may be
imposed because the class action is subject to
"abuse", intentional or inadvertent. It argues
therefore that procedures should be employed to
anticipate abuse. The Manual concedes that abuses
are "the exceptions in class action litigation
rather than the rule" and are "relatively rare."

37/Id. at 36-37. See, supra at p, 32, n.25.— • 
Indeed, the Manual speaks throughout of mere 

"potential abuses," rather than actual or imminent

37/ "[T]he hypothesis that abuses occur with such 
frequency and impact that prophylactic 
judicial intervention is required must be 
examined with the same scrutiny as other
factual hypotheses. Neither the Constitution 
nor the judge's duty of constitutional fact 
finding is subsumed by the application 
of the pejorative word 'abuse.' Not every­
thing that tends to make a class action 
less convenient than ideal, or more difficult 
to manage is an 'abuse'.... The frequency 
and the effect of genuine abuses in class 
actions in general are not revealed by 
any empirical data made known to us, and 
judges may differ widely in their invididual 
assessments."



- 50 -

abuse, as justifying restraint of fundamental 
First Amendment freedoms. When protected speech 
is alleged to threaten the administration of 
justice or the court's integrity, "'the substan­
tive evil must be extremely serious and the degree 
of imminence extremely high before utterances can 
be punished"'; a "'solidity of evidence' ... is 
necessary to make the requisite showing of immi­
nence"; and "'[t]he danger must not be remote or 
even probable, it must immediately imperil.'" 
Landmark Communications, Inc, v. Virginia, 435 
U.S. 829, 845 (1978); Craig v. Harney, 331 U.S. 
367, 376 (1947); Wood v. Georgia, supra, 370 U.S. 
at 384, 393. See, Chicago Council of Lawyers v .

37/ continued

(JA 262-263) (Fifth Circuit en banc).

The Manual's recommended restrictions on 
communications have been critically analyzed. 
See, Comment, Judicial Screening of Class Action 
Communications, 55 N.Y.U. L. Rev. 670 (1980) 
(forthcoming); Comment, Restrictions on Communica­
tion by Class Action Parties and Attorneys, 1980 
Duke L. J. 360; Seymour, The Use of "Proof of 
Claim" Forms and Ga^ Orders in Employment Dis- 
crimination Class Actions, TO Conn. L. Rev. TZO 
(1978); Wilson, Control of Class Action Abuses 
Through Regulation of Communications, Class 
Action Rpts. 632 (1975); 8 8 Harv. L. Rev. 1911 
(1975).



51

Bauer, 522 F.2d 242, 249 (7th Cir. 1975), cert. 
denied, 427 U.S. 912 (1976). The standard is 
higher still for prior restraint.

The Manual identifies four potential abuses: 
(1 ) solicitation of legal representation; (2 ) 
solicitation of funds and agreements to pay- 
fees and expenses; (3) solicitation by defendants 
of requests by class members to opt out in Rule 
23(b)(3) class actions; and (4) unauthorized 
direct or indirect communications which "may 
misrepresent the status, purposes and effects of 
the action and of court orders therein and which 
may confuse actual and potential class members and 
create impressions which may reflect adversely on 
the court or the administration of justice." 
Manual at 31-32. However, the record does not 
demonstrate that any of these abuses occurred or 
was likely to occur in this case.

Three of the potential abuses, indeed, are 
totally inapplicable to the particular circum­
stances here. With respect to solicitation 
of legal representation, and of funds and agree­
ments to pay fees and expenses, the uncontradicted 
affidavits of plaintiffs' counsel show that they



- 52

have not and will not solicit clients or funds.
38/See, supra at pp. 11-13, 19.~— With respect to the 

third potential abuse, a prohibition of communica­
tions by defendants soliciting opt-out requests in 
Rule 23(b)(3) class actions does not apply to 
communications by plaintiffs in this Rule 23(b)(2) 
action. Thus, only the potential for misrepre­
sentation is even arguably applicable to this case 
But there is no proof that any misrepresen­
tation was ever made or even threatened.

Indeed, even if one of these "potential 
abuses" had been demonstrated, there is substan­
tial doubt that it would have justified the gag 
orders issued here, particularly in light of legal
developments since the original promulgation of

39/the Manual in 1970. Recent decisions of this

38/ Counsel already represent plaintiffs who 
assert that they can adequately represent the 
interests of the potential class, and are provid­
ing representation at no cost to plaintiffs and 
the potential class. The only attorney's fees to 
which counsel may be entitled would be paid by 
defendants through taxation of costs by the court 
if plaintiffs prevail. Id.

39/ The terms of the suggested order and local 
rule have remained the same since the publication 
of the original Manual for Complex and Multi-



53

Recent decisions of this Court now establish that 
solicitation of legal representation, at least in 
some forms, is constitutionally protected ac­
tivity. In re Primus, supra; Bates v. State Bar

40/of Arizona, 433 U.S. 350 (1977).—  Instead of 
an across-the-board approach to prohibition of 
solicitation, the Court has thus confirmed that 
anti-solicitation measures must be adjudicated on 
a case-by-case basis. Even prior to 1970, NAACP 
v. Button and the union referral cases recognized 
that solicitation of legal representation is not 
per se unethical.—

39/ continued

district Litigation, 49 F.R.D. 217, 229-230
(1970), except for the last two sentences concern­
ing "communications protected by a constitutional 
right," which were added in a 1973 revision. 
Manual for Complex Litigation, Part II, §1.41, at 
226 (1973).

40/ See also, Coles v. Marsh, supra; Halverson 
v. Convenient Food Mart, Inc., supra.

41/ See also, ABA Comm, on Professional Ethics 
and Grievances, Opinions, No. 148, 1935 (1957),
discussed supra at p. 36, n.27. Solicitation of 
potential class members is permissible under the 
ABA Code of Professional Responsibility, DR 
2-104(a).



54

As to solicitation of fees and expenses,
since the Manual1 s suggested order and rule were
drafted, "the Court has subsequently understood
Cantwell [v. Connecticut, 310 U.S. 296 (1940)] to
have implied that soliciting funds involves
interests protected by the First Amendment's
guarantee of freedom of speech. Virginia Pharmacy
Board v. Virginia Consumer Council, 425 U.S. 748,
761 (1976); Bates v. State Bar of Arizona, 433
U.S. 350, 363 (1977)." Village of Schaumburg v .
Citizens for a Better Environment, 444 U.S. 620,

427629 (1980).-- Moreover, the ABA Committee on

41/ continued

(1 ), providing that a lawyer may accept employment 
generated by his unsolicited advice from "one whom 
the lawyer reasonably believes to be a client," 
and under the ethical rule that a lawyer whose 
client will benefit from joinder of others simi­
larly situated may seek out such additional 
claimants, if the lawyer's motive is not to secure 
additional fees. See, Halverson v. Convenient 
Food Mart, Inc., supra, 458 F.2d at 930-931 and 
authorities cited.

42/ Even prior to 1970, "our cases long have 
protected speech even though it is in the form of 
... a solicitation to pay or contribute money,



55

Professional Ethics has determined that this kind 
of solicitation is also not invariably unethi- 
cal.

With respect to solicitation by defendants of
requests by class members to opt out of Rule
23(b)(3) actions, recent authority is divided as
to whether such solicitation is unethical in the

. 44 /absence of demonstrated coercion or fraud.—

42/ continued

New York Times Co. v. Sullivan," [376 U.S. 254 
(1964)]." Bates v. State Bar of Arizona, supra, 
433 U.S. at 363; Village of Schaumburg, supra, 444 
U.S. at 633.

43/ Thus, it is permissible for a class represen­
tative to solicit money from potential class 
members to cover the expenses of a suit, II 
ABA Comm, on Professional Ethics^ Informal Ethics 
Opinionsi 537-540, Inform. Op. No. 1280, Aug. 8, 
1973 (ABA 1975), and class action counsel are 
permitted to advance money to cover litigation 
costs. Id., at 544-547, Inform. Op. No. 1283, 
Nov. 20, T9"73.

44/ Compare Matarazzo v. Friendly Ice Cream Corp., 
~&I F.R.D, 65, 69 (E.D N.Y. 1974), and Greisler vT 
Hardee's Food Systems, Inc., 1973 Trade Cases 
K 74,455 (E.D. Pa. 1973), with Northern Acceptance 
Trust 1065 v. AMFAC, Inc., 51 F.R.D. 487, 491 
(D. Hawaii 1971).



56

Assuming such a practice does raise ethical 
problems, specific remedies other than the Man­
ual 1 s blanket ban on communications are avail­
able, such as a remedial notice voiding improperly 
obtained opt-out requests.

As to communications which "may misrepresent" 
or "may create impressions tending, without cause, 
to reflect adversely on any party, any counsel, 
court or the administration of justice," the scope 
of this "potential abuse" is so vague and indeter­
minate that it necessarily includes protected and 
ethical communications. In Village of Schaumburg 
v. Citizens for a Better Environment, supra, the 
Court was of the view that a "legitimate interest 
in preventing fraud can be better served by 
measures less intrusive than a direct prohibition 
on solicitation. Fraudulent misrepresentations 
can be prohibited and the penal laws used to 
punish such conduct directly." 444 U.S. at 637. 
With respect to lawyer misrepresentation, the 
"precise contours of permissible ... regulation" 
were deliberately not drawn in In re Primus,
supra, 436 U.S. at 438 n.33, and 439-440 (Black- 
mun, J., concurring), other than to permit precise



57

regulation where there is "in fact" misleading 
solicitation. Moreover, "[g]iving of advice that 
one should take legal action could well be in 
fulfillment of the duty of the legal profession to 
assist laymen in recognizing legal problems," as 
long as the attorney is not "motivated by a desire
to obtain personal benefit." ABA Code of Profes-

. . 45/sional Responsibility, EC 2-3.-- The broad
potential-for-misrepresentation prohibition, thus, 
may well invade the province of a lawyer's 
ethically proper communication.

The Manual, which is periodically updated, 
cites none of the recent authorities discussed 
above. It maintains instead that "experience 
continues to teach that it is dangerous to await 
the occurrence of an abuse before trying to 
correct it." Id. at 32 (Supp. 1978). The 
Manual, at 34, states that the recommended

45/ See also, ABA Comm, on Professional Ethics 
and Grievances, Opinions, No. 148, 1935 (1957) 
(discussed supra at p. 36, n.27); see also, In re 
Sawyer, 360 U.S. 622, 631-632 (1959).



58

restrictions are the "result of unfortunate ex­
periences where parties and counsel have abused 
the class action process," and then cites ex­
emplary cases. However, none of the cases cited to 
document alleged abuse disclose a single instance 
of proven misconduct by plaintiffs or their 
counsel which would have been prevented by the 
suggested order or local rule. Manual, pp. 34-35

46nn.34-42; see also, Br, p. 15 n.5.—

46/ Several cases concern restrictions based on a 
bare fear of potential abuse, rather than a 
situation which has "matured" into actual abuse. 
See, Ace Heating and Plumbing Co. v. Crane Co. , 
453 F . 2d 30 (3d Cir. 1971); N.O.W. v. Minnesota 
Mining & Mfg. Co. , 18 FEP Cases 1176 CdT Minn.
1977) , appeal dism'd, 578 F.2d 1384 (8 th Cir.
1978) . Others present no issue of abuse. See, 
Weisman v. Darneille, 78 F.R.D. 671 (S.D.N.Y. 
19 78) ; Northern Acceptance Trust 1065 v. AMFAC, 
Inc., 51 F.R.D. 487 (D. Haw. 1971). One case 
concerned an improper determination of abuse. 
Korn v. Franchard Corp. , 456 F.2d 1206 (2d Cir. 
1972 ), rev 'g, 1971 Sec. L. Rep. 192,845 (S.D. N.Y. 
1971). In Korn, for example, the Second Circuit 
expressly refused to evaluate the propriety of the 
conduct of plaintffs' counsel in communicating 
with class members, but reversed the district 
court for condemning that conduct without giving 
the attorney adequate notice and hearing.



59

C. The Orders Impose Unconstitutional Prior
Restraint on Protected Expression.

The comprehensive and detailed opinion 
of the Fifth Circuit en banc demonstrates the

46/ cont inued

The gag orders are inapplicable in several 
cases. See, Reed v. Sisters of Charity of the
Incarnate Word of Louisiana, Inc., 25 Fed. 
Rules Serv. 271 331 (W.D. La. 1973); Carlisle v.
LTV Electrosystems, Inc., 54 F.R.D. 237 (N.D. Tex. 
19 7 2 ), appeal dismr5~, No. 72-1605 (5th Cir.,
June 23, 1972). For example, the gag orders could 
not reach the prefiling activity described in
Carlisle (plaintiffs' attorney sought out people 
willing to have a class action instituted in their
names as representatives of the class) or Reed 
(plaintiffs' counsel solicited institution of the 
suit during inflammatory speech).

Several cases demonstrate that there are less 
restrictive means to deal with possible abuses. 
See, Rothman v. Gould, 52 F.R.D. 494 (S.D. N.Y. 
1971); Yaffe v. Detroit Steel Corp., 50 F.R.D. 481 
(N.D. 111. 1970) (the compromise of claims or 
solicitation by defendants of class members to opt



60

unconstitutionality of the orders as unjusti­
fied prior restraint of protected speech. (JA 

47/241-267).—  Judge Godbold's opinion first

46/ continued

out could have been remedied through the court's 
review of compromises under Rule 23(e)); Hawkins 
v . Holiday Inns, Inc., [1978-1] Trade Cases 
161,838 (W.D. Tenn. I"978) (injunction and notice). 
£f. , Northern Acceptance Trust 1065 v, AMFAC, 
supra (efforts by defendants' counsel to obtain 
affidavits from members of a putative class 
indicating that they had not entered into any 
arrangements to be represented by plaintiffs' 
attorney, can be controlled by means of existing 
restrictions on communications by lawyers with 
persons having adverse interests). See, ABA Code 
of Professional Responsibility, DR 7-104.

Other "abuses" did no harm to potential class 
members, or to the management of the suit. See, 
e • g ■ , Northern Acceptance Trust 1065 v, AMFAC, 
supra, and EEOC v. Red Arrow Corp. , 392 F. Supp. 
64 (E.D. Mo. 1974).

47/ Although the opinion speaks only of the 
June 22, 1976, order, the validity of all three 
orders is before the Court. See, supra at pp. 
16, 20, 24. The June 22 order, in any event, is 
on its face the least restrictive of the three 
orders. A fortiori, the Fifth Circuit's opinion 
applies to the May 28 and August 10 orders as 
well.



61

scrupulously reviews and correctly applies this 
Court's cases in order to determine whether the 
orders constitute a system of prior restraint, 
looking to their origin, purpose, means of en­
forcement and means of constitutional challenge. 
Southeastern Promotions, Ltd, v, Conrad, 420 U.S. 
546 (1975); Near v, Minnesota, 283 U.S. 697 
(1931). (JA 241-252). After determining that the 
restrained expression is protected, NAACP v . 
Button, supra; In re Primus, supra (JA 252-256), 
the opinion then conducts an inquiry into whether 
the prior restraint is justified in the face of 
"'the heavy presumption against its constitutional 
validity.'" Southeastern Promotions, Ltd, v . 
Conrad, supra, 420, U.S. at 558, quoted in Vance v . 
Universal Amusement Co., 445 U.S. 308, 316 n.13 
(1980). (JA 256-266). The court concludes that 
the orders (a) do not fit within any of the 
narrowly defined exceptions to the prohibition 
against prior restraint, (b) do not prevent 
"direct, immediate, and irreparable damage," New 
York Times Co. v. United States, 403 U.S. 713 
(1971), in the least restrictive manner, and (c) 
do not comport with required procedural safe­



62

guards. The court therefore holds that the orders 
impose an unconstitutional prior restraint.

Because respondents submit that the en 
banc opinion's application of constitutional 
principles to this record is correct, we limit 
our discussion of prior restraint to replying to 
several arguments petitioners make against 
the en_ banc opinion.

First, petitioners argue that the orders
are not a system of prior restraint because the
June 22 order "allowed free exercise of speech
without court approval" by virtue of the provision
for asserting a constitutional right to communi-

48/cate. Br, p. 32.—  Petitioners ignore com-

48/ Petitioners cite Smith v. Daily Mail Pub­
lishing Co. , 443 U.S. 9 7 (19 79 ) , and Kingsley 
Books v. Brown, 354 U.S. 436 (1957), in support of 
their contention that a prior restraint analysis 
is inappropriate because, in petitioners' view, 
the orders are the result of "reconciling compet­
ing constitutional values" of freedom of speech 
and the administration of justice. Br, pp. 31-32. 
In Smith, a statute which made it a crime for a 
newspaper to publish, without written court 
approval, the name of any youth charged as a 
juvenile offender could not be justified even as a 
penal sanction under Landmark Communications, Inc. 
v. Virginia, 435 U.S. 829 (1978). 443 U.S. at



pletely both the May 28 order, which on its face 
was an absolute ban on communication, and the

48/ continued '

101, 102. "Since we conclude that this statute 
cannot satisfy the constitutional standard defined 
in Landmark Communications, Inc., we need not 
decide whether, as argued by respondents, it 
operated as a prior restraint." I_d_. Smith, 
therefore, does not support petitioners. See, 
e.g., Vance v. Universal Amusement Co., supra, 443 
U.S. 316 n.13.

The language in Kingsley Books v. Brown, 
supra, 354 U.S. at 441, that prior restraint 
is not a "talismanic test," does not conflict 
with the presumption against prior restraints, the 
en banc opinion's meticulous analysis of the 
orders, or cases since Kings ley such as South- 
astern Promotions, Ltd. v. Conrad, supra, 420 U.S. 
at 558.

The prohibition against unjustified prior 
restraint does not somehow inhibit the recon­
ciling of competing values. Rather, the presump­
tion against prior restraint merely strikes the 
balance required by the First Amendment because "a 
free society prefers to punish the few who abuse



- 64 -

August 10 order, which, in fact, gutted whatever 
illusory exception for constitutionally protected 
speech existed in the June 22 order. The mere 
formal existence of an exception, in any event, is 
not enough to immunize a system of prior re­
straint. The Court has long deemed it necessary
"to look through forms to the substance," Bantam

49 /Books v . Sullivan, 372 U.S. 58, 67 ( 1973),—  
and not required that, a provision "effect total 
suppression in order to create a prior restraint." 
Southeastern Promotions, supra, 420 U.S. at 556 
n.8 . See, Buckley v. Valeo, 424 U.S. 1, 52
(1976); Miami Herald Publishing Co v. Tornillo, 
418 U.S. 241, 256 (1974); New York Times Co v.

48/ continued

rights of speech after they break the law than to 
throttle them and all others beforehand." South- 
astern Promotions, Ltd. v. Conrad, supra, 420 U.S. 
at 559.

49/ "The special vice of a prior restraint is 
that communication will be suppressed, either 
directly or by inducing excessive caution in the 
speaker before an adequate determination that it 
is unprotected by the First Amendment." Pitts­
burgh Press Co. v. Human Relations Comm'n, 413 
U.S. 376, 390 (1973) (emphasis added).



- 65

Co. v. Sullivan, 376 U.S. 254, 279 (1964).—  ̂
Second, petitioners argue that the "excep­

tion" for constitutionally protected communica­
tion is "broad" and "limits severely the scope of 
the information subject to prior scrutiny." Br, 
p. 32. The June 22 order prohibits all communi­
cations, but ambiguously requires that a party or 
counsel who "asserts a constitutional right to 
communicate" file a copy of any written communi­
cation or a summary of any oral communication 
within five days after the communication. (JA 
100, 101). In rejecting a similar effort to save 
an unconstitutional provision, the Court held 
that,

"[i]f there is an internal tension between 
proscription and protection in the statute, 
we cannot assume that, in its subsequent 
enforcement, ambiguities will be resolved in 
favor of adequate protection of First Amend­
ment rights."

50/ Contrary to petitioners' suggestion, Br, 
p. 32, Gannett Co. v. DePasquale, 433 U.S. 368, 
393 (1979) (" any denial of access in this case was 
not absolute but only temporary") (emphasis 
added), does not require an absolute ban to 
trigger prior restraint analysis.



66

NAACP v. Button, 371 U.S. at 438. The district 
court's August order, in any event, demonstrates 
why courts "will not presume that the statute 
curtails constitutionally protected activity as 
little as possible." Id. at 432.

"Standards of permissible statutory vagueness 
are strict in the area of free expression." Id. 
The extent of the protection accorded by the 
otherwise undefined exception is uncertain and 
provides no notice of what is permitted or pro­
hibited. "This provision does not eliminate—  
indeed, it highlights--the overbreadth and resul­
tant chilling effect of the proposed rule."
8 8 Harv. L. Rev. 1911, 1922 n.74 (1975). The

. . 51/exception itself is unconstitutionally vague.—
The system of prior restraint imposed by the
orders thus will work its harm by compelling
parties and counsel to "steer far wider of the

51 / Hirschkop v. Snead, 594 F . 2d 356, 372-373
(4th Cir. 1979); Chicago Council of Lawyers v .
Bauer, 522 F.2d 242, 259 (7th Cir. 1975), cert. 
denied, 427 U.S. 912 (1976); CBS, Inc. v. Young, 
522 F . 2d 234, 239-240 (6th Cir. 1975); Zarate v . 
Younglove, 8 6 F.R.D. 80, 101 (C.D. Cal. 1980).



67

unlawful zone." Speiser v. Randall, 357 U.S. 513, 
526 (1958), quoted in New York Times Co. v .
Sullivan, supra, 376 U.S. at 279. Neither the
orders nor the exception in the June 22 order is 
"'closely drawn to avoid unnecessary abridgement of 
associational freedoms.'" In re Primus, supra, 436 
U.S. at 432, quoting Buckley v. Valeo, 424 U.S. 1, 
25 (1976).—

52/ The filing requirement increases the harm. 
"It is hardly a novel perception that compelled 
disclosure of affiliation with groups engaged in 
advocacy may constitute [an] effective ... re­
straint on freedom of association." NAACP 
v. Alabama ex rel. Patterson, 357 U.S. 449, 
462 (1958). The filing requirement extends to 
every communication, including communication 
protected as attorneys' work product. See, 
Hickman v. Taylor, 329 U.S. 495 (1947). "To the 
extent that such communications contain informa­
tion as to class counsel's view of the case or the 
decisions of class counsel as to tactics or 
strategy, the failure to serve the party opposing 
the class makes the communications an ex parte 
contact with the court which infringes the rights 
of the defendant, but service of the communication 
on the party opposing the class would give the 
class opponents the benefits of discovery in areas 
which are normally privileged." Seymour, The Use



68

The related claim that the exception allows
constitutional challenge to restraint as a defense
to criminal contempt, Br, p. 33, is adequately

53 /disposed of by the dissent to the panel opinion—

52/ continued

of Claim" Forms and Gag Orders in Employment Dis­
crimination Class Actions, 10 Conn. L. Rev. 920, 
942 (1978).

53/ "The majority's conclusion that the assertion 
of a good faith belief gives total protection 
is disingenuous. The district court would 
still be entitled to inquire into the bona 
fides of counsel's belief. Because counsel 
may be called upon to establish the basis for 
his good faith belief, and therefore is put at 
risk for possibly violating the court's 
order, the good faith exception does not 
ameliorate the chilling effect of the order. 
It is little comfort for a conscientious 
attorney to be told that he may communicate 
with potential class members but that at a 
later time may be called upon by the court to 
justify the communication. Even if facially a 
cure, the constitutional exception is no cure 
as applied to these plaintiffs who prudently 
asked for pre-distribution approval of the 
leaflet reproduced [as Addendum B] rather



69

and by the en banc majority opinion,—  Systems 
of prior restraint with similar formalistic but 
ineffective "safety valves" have been struck down 
because the system in operation "'dampens the vigor 
and limits the variety of public debate. Miami 
Herald Publishing Co, v, Tornillo, supra, 418 U.S. 
at 257. See, supra at p. 64.

The rule proposed by petitioners in practice 
is unworkable as a matter of fairness and judicial 
economy. If, as petitioners suggest, an immediate 
appeal of a finding of contempt is required every 
time there is restraint, prosecution of the 
lawsuit on the merits will be handicapped and the 
appellate courts will be inundated with cases 
requiring supervision of minute details of barred 
class communication. If, on the other hand,

53/ continued

than risk post-distribution filing and were 
given a belated denial."

(JA 227-228) (footnotes omitted).

54/ The "good faith" defense "is not found within 
the order but was read into it by the panel 
majority", and "[e]ven if this construction is 
correct, the defense is so freighted with precon­
ditions and uncertainties that it is little 
comfort to attorney or party ..." (JA 250-252).



70

plaintiffs and their counsel are required to 
remain silent pending final judgment before 
obtaining appellate review, their rights to free 
expression and association often will be irre­
trievably lost. It will soon be five years since 
the communication orders below were issued. If 
plaintiffs prevail on appeal, retrial may be 
necessary. Finally, if plaintiffs and their 
counsel simply ignore the court's order and 
exercise their First Amendment rights, they may be 
precluded from asserting those rights on appeal at 
all. See, Walker v. City of Birmingham, 388 U.S. 
307, 316-317 (1967). In any event, the harm
worked by the orders on a fundamental right of 
meaningful access to the courts will have been 
done.

D. The Orders Are Overbroad.

"Because First Amendment freedoms need breath­
ing space to survive, government may regulate 
in the area only with narrow specificity.

* * *

"Broad prophylactic rules in the area of free 
expression are suspect. ... Precision of 
regulation must be the touchstone in an area 
so closely touching our most precious free­
doms ."



71

NAACP v. Button, supra, 371 U.S. at 433, 438; In
re Primus, supra, 436 U.S. at 432-433; Nebraska
Press Association v. Stuart, supra, 427 U.S. at
568; Village of Schaumburg v. Citizens for a Better 

.  ̂ 5 5 7Environment, supra, 444 U.S. at 637.--- jn Button
and In re Primus, this principle was applied to
strike down similarly broad prohibitions of
alleged solicitation by attorneys engaged in
civil rights and civil liberties enforcement 

56/ . .actions. Even a legitimate governmental

55/ See, In re Halkin, supra, 598 F.2d at 193— 
194; Hirschkop v. Snead, supra, 594 F . 2d at 373; 
Chicago Council of Lawyers v. Bauer, supra, 522 
F.2d at 257-259.

After its analysis of the order as a prior re­
straint, the en banc majority stated that "the un- 
constitutionality of the order does not rest on 
that ground alone. Even under the more relaxed 
analysis accorded subsequent restraints the order 
fails to pass constitutional muster." (JA 266-267 
n.33).

56/ In In re Primus, the Court stated that,

"At bottom, the case against appellant 
rests on the proposition that a State may 
regulate in a prophylactic fashion all solici­
tation activities of lawyers because there
may be some potential for overreaching,



72

purpose "cannot be pursued by means that broadly 
stifle fundamental personal liberties when 
the end can be more narrowly achieved." Shelton 
v. Tucker, 364 U.S. 479, 488 (1960).

The district court's orders simply are not 
"narrowly drawn regulations designed to serve 
[legitimate] interests without unnecessarily inter­
fering with First Amendment freedoms." Village of 
Schaumburg v. Citizens for a Better Environment, 
supra, 444 U.S. at 637. The majority en banc
opinion was clearly right that "[i]t is obvious 
that overbreadth is inevitable under a system by 
which plenary restraints are imposed automatic-

56/ continued

conflict of interest, or other substantive 
evils whenever a lawyer gives unsolicited 
advice and communicates an offer of represen­
tation to a layman. Under certain circum­
stances, that approach is appropriate in the 
case of speech that simply "proposals] a 
commercial transaction," Pittsburgh Press 
Co. v. Human Relations CommlTl 413 U. S. 376, 
385 (1973). See Ohralik [v. Ohio State Bar 
Assn., 436 U.S. 447] at 455-459. In the con- 
text of political expression and associa­
tion, however, a State must regulate with 
significantly greater precision."

In re Primus, supra, 436 U.S. at 437-438.



73

ally by rule or order in every actual or potential 
class action." (JA 264 n.32). The communica­
tions orders operated as a blanket prohibiton, and 
included in their coverage the very kind of 
activity legitimated in Button and In re Primus.

The orders clearly transgressed the require­
ment that "'broad rules framed to protect the 
public and to preserve respect for the administra­
tion of justice' must not work a significant 
impairment of 'the value of associational free­
doms.'" In re Primus, 436 U.S. at 426, quoting 
Mine Workers, supra, 389 U.S. at 222. The terms of 
the May 28 prohibition were all-inclusive, and the 
August 10 order was directly aimed at protected 
expression. The provision in the June 22 order 
for assertion of a constitutional right to commu­
nicate on pain of criminal contempt does not save 
the orders from overbreadth. NAACP v . Button, 
supra, 371 U.S. at 437-438. See, supra at pp. 65- 
67. "First Amendment interests are fragile 
interests, and a person who contemplates protected 
activities might be discouraged by the in terrorem 
effect of the statute." Bates v. State Bar of



74 -

Arizona, supra, 433 U.S. at 380; see, Nebraska 
Press Association v. Stuart, 427 U.S. 539, 568
(1976).

II

THE ORDERS RESTRAINING COMMUNICATIONS 
VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH 
AMENDMENT.

A. The Due Process Clause Guarantees Plain­
tiffs and Potential Class Members 
S i g n i f i c a n t  Procedural R i g h t s .

The district court restricted the right of 
plaintiffs and plaintiffs' counsel to commun­
icate with potential class members, permitted 
certain communications between Gulf and potential 
class members, denied a specific request by- 
plaintiffs' counsel to communicate, and instructed 
the court clerk to send the class members a notice 
regarding Gulf's offer of settlement. These 
actions deprived plaintiffs and potential class 
members of their rights guaranteed by due process 
of law.

"The constitutional right to due process 
is a basic aspect of the duty of government 
to follow a fair process of decisionmaking 
when it acts to deprive a person of his



75

possessions. The purpose of this requirement 
is not only to ensure abstract fair play to 
the individual. Its purpose, more particu­
larly, is to protect his use and possession 
of property from arbitrary encroachment —  to 
minimize substantively unfair or mistaken 
deprivation of property ...."

Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972).
The protection of property afforded by the 

requirements of due process "has been broadly read 
to extend protection to 'any significant property 
interest, 1" id., 407 U.S. at 86, quoting Boddie v. 
Connecticut, 401 U.S. 371, 379 (1971), including 
statutory entitlements, "whether the entitlement 
is denominated a 'right' or a 'privilege'." Bell 
v. Burson, 402 U.S. 535, 539 (1971 ); Goldberg v . 
Kelly, 397 U.S. 254, 262 (1970). The right to 
equal employment opportunity and freedom from 
discrimination created by Title VII is "of the 
'highest priority'," Alexander v. Gardner-Denver 
Co. 415 U.S. 36, 47 (1974), and casts private 
litigants and their counsel in a central enforce­
ment role. Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 416-417 (1978).



76

Due process may not be ignored to satisfy 
concerns for efficiency or for the expeditious 
resolution of disputes.

[T]he Constitution recognizes higher values 
than speed and efficiency. Indeed, one 
might fairly say of the ... Due Process 
Clause... that [it was] designed to protect 
the fragile values of a vulnerable citizenry 
from the overbearing concern for effi­
ciency and efficacy that may characterize 
praiseworthy government officials no less, 
and perhaps more, than mediocre ones."

Stanley v. Illinois, 405 U.S. 645, 656 (1972) 
(footnote omitted).

The "shortcut" procedure followed by the 
district court, as is the case with many proced­
ural shortcuts which ignore due process, may 
result in much more complex, lengthy and uncertain 
litigation. Cf. , Hansberry v. Lee, 311 U.S. 32 
(1940); Eisen v. Carlisle & Jacquelin, 417 U.S. 
156 (1974). If the waivers of potential class
members' rights under the fair employment laws 
were solicited by Gulf in a manner which precluded 
the class members from making a "knowing and 
voluntary" choice because they were presented with 
one-sided, inadequate information and denied the 
effective assistance of counsel, then those 
waivers would not bar further litigation on



77

behalf of the class members who signed them.——  ̂
See, Alexander v. Gardner-Denver Co. , supra, 
415 U.S. at 52 n,15. In fact, in fair employment 
cases, where "laymen, unassisted by trained 
lawyers, initiate the process," Love v. Pull­
man Co., 404 U.S. 522, 527 (1972), the possi­
bility that conciliation procedures may deny indi-

58/viduals due process is of particular concern.—

57/ The possibility that future litigation may 
provide a remedy for the class members who 
did not knowingly or voluntarily sign the waiver 
does not remove the obligation to insure that 
the district court afforded due process during the 
period of solicitation of waivers. "... [N]o 
later hearing and no damage award can undo the 
fact that the arbitrary taking that was subject 
to the right to procedural due process has already 
occurred. 'This Court has not ... embraced 
the general propositon that a wrong may be done if 
it can be undone.1" Fuentes v. Shevin, supra, 407 
U.S. at 81-82, quoting Stanley v. Illinois, 405 
U.S. 645 (1972).

58/ See, e.g., Mosley v. St. Louis Southwestern 
R£. , 634" F . 2d 942, 945-946 (5th Cir. 1981) 
(court invalidated waiver because an EEOC official 
failed to present settlement to plaintiff's 
attorney, but rather presented offer directly



78

B. Adequate Information Was Denied.

It is fundamental that due process of law 
requires the right to information, or "notice and 
an opportunity to be heard [which] 'must be granted 
at a meaningful time and in a meaningful manner.'" 
Fuentes v. Shevin, supra, 407 U.S. at 80, quoting 
Armstrong v. Manzo, 380 U.S. 545 (1965). More­
over, "... when notice is a person's due, process 
which is mere gesture is not due process. The 
means employed must be such as one desirous of 
actually informing the absentee might reasonably 
adopt to accomplish it." Mullane v. Central 
Hanover Bank & Trust Co., 339 U.S. 306, 315
(1950).

The orders here stand the Mullane formula on 
its head. Gulf, the party which has an interest 
antagonistic to potential class members, was 
afforded a central role in providing them with 
notice and information concerning the conciliation 
agreement, while 'the plaintiffs, who have essen-

58/ continued

to the charging party); Winfield v. St. Joe 
Paper Co. , 20 FEP Cases 1103, 1108-14 (N.D. Fla. 
1979) (court invalidated waivers because the EEOC 
officials had provided misleading and inadequate 
information).



79 -

tially the same interest as the class members, and
plaintiffs' counsel, who have a legal obligation
to represent the interests of the class mem- 
, 59/hers, were prevented from communicating with 
the potential class.

59 / Gulf states that "it appears that the 
attorney-client relationship between counsel for 
the named plaintiffs and purported class members 
is created when the court certifies the class and 
designates the class representative and his 
counsel." Br, p. 19, n.12 (emphasis added). 
Contrary to Gulf's supposition, class counsel are 
ethically obligated to take all actions necessary 
for the protection of the interests of a class 
member until the class member elects to place his 
or her personal claim in the hands of another 
attorney. "[C]lass action counsel possess, in a 
very real sense, a fiduciary obligation to those 
not before the court." Greenfield v. Villager 
Industries, Inc., 483 F.2d 824~j 832 (3d Cir. 1973) 
(footnote omitted). Therefore, the failure to 
appeal a denial of class certification has been 
described as an "abdication" of responsibilities.
Romasanta v. United Airlines, Inc., 537 F.2d 915, 
918, 919 (7th Cir. 1976), aff1 d sub nom. United 
Airlines v. McDonald, 432 U.S. 385 (1977). See 
Seymour, The Use of "Proof of Claim" Forms and 
Gag Orders in Employment Discrimination Class 
Actions, 10 Conn. L. Rev. 920, 928-929 n.64 
(1978).



80

Pursuant to the conciliation agreement, Gulf
60/prepared and sent a letter dated May 1, 1976—

to covered persons. The May 1 notice stated that 
if an employee did "not understand” Gulf's offer, 
the employee should contact a Gulf manager,
C.B. Draper, in order to "arrange an interview 
with a government representative." The letter 
specifically discouraged the employee from con­
sulting with any other person, including an 
attorney: "Because this offer is personal in

59/ continued

The attorney for the class has an obligation 
to ensure that the interests of all the class 
members are protected. Accordingly, the inquiry 
under Rule 23(a)(4), Fed. R. Civ. Proc., as to 
whether "the representative parties will fairly 
and adequately protect the interests of the class" 
focuses upon the "adequacy" of the attorneys for 
the class. North American Acceptance v. Arnall, 
Golden & Gregory, 593 F . 2d 642, 644, n. 4 (5th
Cir. 1979); Wetzel v. Liberty Mutual Insurance
Co. , 508 F . 2d 239, 247 (3d Cir.), cert. denied 
421 U.S. 1011 (1975). The obligation of the class 
attorney commences with the filing of the com­
plaint and not just with the certification of the 
class by the court.

60/ This letter is attached to this brief as 
Addendum A. Seej supra, p.6, n.7.



81

nature. Gulf asks that you not discuss it with 
others."

The order of June 22 sanctioned the one-sided 
presentation of information to potential class 
members. See, supra at 20-22. It specifically
permitted Gulf to contact potential class members 
through the district court for the purpose of 
offering "back pay" settlements and soliciting 
releases. The district court ordered that a 
notice be sent to class members who had failed to 
accept Gulf's offer. The notice not only improper­
ly gave "the official imprimatur of the court," 
(JA 216) (panel opinion, Godbold, J., dissenting), 
to the making of settlement offers and solicita­
tion of releases by Gulf, but also failed to notify 
black employees of the availability of class 
counsel or even of the possibility of obtaining 
independent legal advice.

Under the June 22 order, company officials 
and supervisors were also free to discuss the case 
with their black employees and to offer their 
views on subjects ranging from the adequacy of the 
company's conciliation agreement and settlement 
offers to the reputation of plaintiffs' counsel. 
As long as these discussions "occurr[ed] in the 
regular course of business," they were not subject



82

to any regulation by the court. This was an 
opportunity for access to potential class members 
which plainly was not available to plaintiffs and 
their counsel, and it was open to widespread and 
unreviewable abuse in the context of the employer- 
employee relationship.

The unfairness of the procedure was exacer­
bated by the court's subsequent denial of plain­
tiffs' request that they and their counsel be 
permitted to communicate with class members and 
to distribute a leaflet within the time period for 
responses to the tender of back pay. The leaflet 
notified black employees of the existence of the 
lawsuit as an alternative to acceptance of Gulf's 
offer and urged them to talk to an attorney. 
Addendum B. The district court waited until two 
days after the period for acceptance of the tender 
offer and then prohibited the distribution 
of the leaflet and denied the right to communi­
cate. See, supra at p. 24.

The restrictions on communications were so 
unfair and one-sided, and the failure to provide 
for or to permit adequate notice and information 
was so contrary to the requirements of Mu1lane and



83

Fuentes, that they constitute a denial of due 
process of law in violation of the Fifth Amend­
ment. Cf., JA 213-216 (Godbold, J., dissenting 
from the panel decision). In addition, the orders 
violate the due process clause because they 
constitute a federally-imposed discrimination 
which, if enforced by a state, would violate the 
equal protection clause of the Fourteenth Amend­
ment. Bolling v. Sharpe, 347 U.S. 497 (1954); 
Johnson v. Robison, 415 U.S. 361, 364 n.4 (1974).— ^

C. Effective Assistance of Counsel 
Was Denied.

The right to notice, adequate information and 
an opportunity to be heard, '"would be, in many 
cases, of little avail if it did not comprehend 
the right to be heard by counsel....' Counsel

61/ "The right to equal protection of the law in 
the exercise of those freedoms of speech and 
religion protected by the First and Fourteenth 
Amendments, has firmer foundation that the whims 
or personal opinions of a local governing body." 
Niemotko v. Maryland, 340 U.S. 268, 272 (1951); 
Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940); 
cf. Cox v. Louisiana, 379 U.S. 559, 581 (1965) 
(Black, J., concurring); see also, Cox v. Louisi­
ana, 379 U.S. 536, 557 (1965).



can help delineate the 
safeguard the interests 
Goldberg v. Kelly, 39
Counsel may provide t 
and advice which will { 
to the right to be hea 
member adequate informal 
"choose for himself whet 
acquiesce or contest," 
Hanover Bank & Trust Co.j 
The plaintiffs and theij 
right "to be fairly j
author ized by Congress t|
lie interest.I! Brothsj
v. Virginia, 377 U.S. 1

private f low o f C

workers and the at tori
interest must be protect
not be e xp e ct ed to kin]
rights when dealing wits
counseled adversaries, cj

62/372 U.S. 335." Id.—

62/ The right to retai 
by counsel in civil W 1 
concept of Fifth Amend®



- 85 -

Due process may not require the appointment 
of counsel, even where, as here, important civil 
rights are at stake, but due process does require 
that district courts not arbitrarily or un­
fairly restrict the right of potential class 
members to class counsel who are available and 
obligated to represent their interests. Not only 
did the orders prohibit communication between the 
class counsel and potential class members, but the 
orders prohibited notice, as requested by plain­
tiffs, that class counsel were available for 
consultation or that other attorneys might assist
them in making a determination whether or not to

63 /accept Gulf's offer of back pay.—

62/ continued

any case, civil or criminal, a state or federal 
court were arbitrarily to refuse to hear a party 
by counsel, employed by and appearing for him, it 
reasonably may not be doubted that such a refusal 
would be a denial of a hearing, and, therefore, of 
due process in the constitutional sense." Powell 
v. Alabama, 287 U.S. 45, 69 (1932) (emphasis 
added); Cooke v. United States, 267 U.S. 517, 537 
(1925); Potashnick v. Port City Construction Co., 
609 F . 2d 1101, 1118 (5th Cir. 1980). See also, 
Note, The Right To Counsel in Civil Litigation, 66 
Colum. L. Rev. 1322 (1966).

63/ "The order permits a potential class member 
to confer with attorneys for plaintiffs at the



86

The infringement upon potential class mem­
bers' access to effective assistance of counsel is 
particularly egregious in this case. Access was 
denied during a period when potential class
members were required to make a decision on

6 A/whether or not to accept Gulf's back pay offer--
and waive their right to litigate their civil 
rights claims. The orders magnified the harm 
created by Gulf's erroneous and self-serving

63/ continued

prospective class member's request. Pragmati­
cally, this is a dubious exception. A prospec­
tive class member must find out who the attorneys 
are and when and where to see them; but the 
actual class members are forbidden to give him 
this information -- or any other information 
about the case -- without prior court approval, 
nor can counsel furnish this information to 
potential class members generally." (JA 214) 
(Goldbold, J., dissenting from the panel de­
cision).

64/ The offer also included the acceptance 
of certain injunctive remedies. See, supra 
at pp. 4-5. Incredibly, neither the letter 
prepared and sent by Gulf, Addendum A, nor the 
notice sent by the court, JA 103-104, mentioned 
the injunctive remedy or otherwise discussed the 
remedies provided by the conciliation agreement. 
Moreover, no information was provided as to 
whether or not more or different injunctive 
remedies might be available if the offer were 
refused and the claims litigated.



87

instruction to the class members -- that a 
potential class member's claim should not be 
discussed with "anyone." Without the assistance 
of professional advice, a potential class member 
could not be expected to have the experience and 
sophistication to fully understand the complex 
choice provided by the back pay offer. Both 
this Court, Love v. Pullman, supra, 404 U.S. at 
526-527, Oscar Mayer & Co. v. Evans, 441 U.S. 750, 
761 (1979), and Congress have observed that
"aggrieved individuals [under Title VII] ... 
frequently are untrained laymen who are not always 
aware of the discrimination which is practiced 
against them..." Section-by-Section Analysis of 
S. 2515, the Equal Employment Employment Opportu­
nity Act of 1972, 118 Cong. Rec. 940-941 (1972). 
Respondents submit that, rather than restricting 
the contact of lawyers in Title VII class actions 
with class members, justice and the policies of 
Title VII would be better served by requiring 
lawyers to have sufficient contact with class
members to insure fair and full representation of

. . 65/their interests.—

65/ Congress has recognized the critical role of 
private counsel in enforcing the policy of Title



88

The denial of the effective assistance of 
counsel did not stop when the period for consider­
ation of Gulf's settlement offers terminated. The 
district court's orders continued to impair 
severely the ability of plaintiffs' counsel to 
provide proper representation to the plaintiffs 
and to the potential class members.

The Manual, at 34, recognizes that class 
members often have knowledge of the relevant facts 
and that "to require a party to develop the case 
without contact with such witnesses may well 
constitute a denial of due process." However, 
plaintiffs and their counsel were not permitted to 
contact and interview black employees who had 
knowledge of the facts, whose experience and 
assistance were necessary in framing litigation

65/ continued

VII and protecting the rights of individuals by 
providing that a court should ordinarily award 
attorneys' fees to a prevailing plaintiff, 
see Christiansburg Garment Co. v. EEOC, supra, 
and by providing that "the court may appoint 
an attorney for [a] complainant," 42 U.S.C. 
§2000e-5(f)(1). See , e . g . , Caston v . Sears,
Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977); 
Hilliard v. Volcker, 24 FEP Cases 1516 (D.C.
Cir. 1981).



89

and settlement strategy, and who were potential
witnesses, unless they first obtained the court's
approval of both the proposed communication and

. 6 6 /its intended recipients.—  if the court ap­
proved, plaintiffs' counsel were required to 
conduct countless limited interviews; any meaning­
ful exchange or discussion would have been impos­
sible, since counsel were permitted to ask only 
approved questions and were not allowed to follow 
up on new information revealed by the class 
members' answers. There was no correspond­
ing restraint on defendants and their counsel: 
Gulf's lawyers were free to consult with manage­
ment and supervisory employees to develop the 
facts, interview witnesses, prepare for trial, and 
discuss strategy without any restrictions what­
ever .

The restraints on communication denied 
effective assistance of counsel to the class 
members. See, Brotherhood of Railroad Trainmen v . 
Virginia, supra, 377 U.S. at 7. Interference 
with an employee's right to discuss the case with 
an attorney representing his interests, without

66/ The assertion of a "constitutional right to 
communicate" under the June 22 order provides no 
real protection. See supra at pp. 62-70.



90

the fact of that discussion being known to his 
employer, may destroy the right to consult a 
lawyer at all. Cf., NAACP v. Alabama, supra, 357 
U.S. at 462. Moreover, plaintiffs' counsel are 
effectively deprived of the opportunity to canvass 
employees for relevant data, to learn the desires 
and attitudes of class members regarding proposed 
forms of relief, and most importantly, to obtain 
information from employees who are too timid to 
aid plaintiffs publicly. This Court has recog­
nized the importance of confidential communica­
tions between employees and their representatives 
in litigation.

"The danger of witness intimidation is 
particularly acute with respect to current 
employees— whether rank and file, supervi­
sory, or managerial— over whom the employer, 
by virtue of the employment relationship, may 
exercise intense leverage. Not only can the 
employer fire the employee, but job assign­
ments can be switched, hours can be adjusted, 
wage and salary increases held up, and other 
more subtle forms of influence exerted. A 
union can often exercise similar authority 
over its members and officers. As the 
lower courts have recognized, due to the 
'peculiar character of labor litigation[,] 
the witnesses are especially likely to be 
inhibited by fear of the employer's or— in 
some cases— the union's capacity for reprisal 
and harassment.' Roger J. Au & Son, Inc, v.



91 -

NLRB, 538 F.2d 80, 83 (CA3 1976). Accord, 
NLRB v. Hardeman Garment Corp., 557 F.2d 559 
(CA6 1977). While the risk of intimidation 
(at least from employers) may be somewhat 
diminished with regard to statements that are 
favorable to the employer, those known to 
have already given favorable statements are 
then subject to pressure to give even more 
favorable testimony."

NLRB v, Robbins Tire & Rubber Co., 437 U.S. 
214, 240 (1978). Cf. , 42 U.S.C. § 2G00e-3(a) 
(unlawful for employers to retaliate against 
employees who invoke Title VII or who assist or 
participate in Title VII proceedings); Pettway v . 
American Cast Iron Pipe Co., 411 F.2d 998 (5th 
Cir. 1969).

Plaintiffs and their counsel are deprived 
even of the basic right to conduct private inter­
views of potential witnesses in preparation for 
trial. The June 22 order ignores the settled 
principle that such interviews are part of an 
attorney's work product and as such are not 
subject to forced disclosure unless the opposing 
party makes a specific showing of undue hardship 
or prejudice. Hickman v. Taylor, 329 U.S. 495 
(1947). The Second Circuit has reversed a dis­
trict court's order which forbade counsel to 
interview adverse witnesses except in the presence
of opposing counsel or a stenographer who could



92

make a transcript of the interview available to 
the court. The court recognized, relying on 
Hickman, "the legitimate need for confidentiality 
in the conduct of attorneys' interviews, ...[and] 
maximizing unhampered access to information 
... [in order to] insur[e] the presentation of the 
best possible case at trial." IBM Corp. v . 
Edelstein, 526 F . 2d 37, 42 (2d Cir. 1975). The 
Second Circuit regarded it as

"a disservice both to the parties and to the 
Court to subject to the Court's scrutiny 
the process by which counsel researches, 
develops and integrates the case which he 
ultimately presents.... To require that his 
initial investigatory efforts be of a quality 
which counsel would willingly include as part 
of his client's final case is to set up an 
impossible standard; to ask him to submit his 
initial probings, notwithstanding their lack 
of effectiveness in his client's behalf, is 
in effect to ask counsel to deny his client 
the effective representation to which he is 
entitled. See, Code of Professional Respon­
sibility, Canon 7."

526 F .2d at 42. The Second Circuit therefore 
held that the restrictions unduly infringed 
counsels ' ability to prepare the case for trial 
and impaired the constitutional right to effective 
assistance of counsel. Id.

The court's order in the instant case denies 
even more fundamental rights: it imposes unconsti



93

tutional retrictions not simply on private inter­
views with an opposing party's witnesses, but on 
interviews by plaintiffs' counsel with their own 
prospective witnesses. By requiring prior disclo­
sure and approval by the court of both the iden­
tity of potential witnesses and the substance of 
proposed interviews, the order destroys the 
confidentiality of those interviews and thus 
deprives plaintiffs and their class of an essen­
tial element of effective representation by 
counsel.

D. An Adequate Hearing and Procedural 
Regularity Were Denied.

"For more than a century the central meaning 
of procedural due process has been clear: 
'Parties whose rights are to be affected are 
entitled to be heard...' Baldwin v. Hale, 68 
U.S. 223, 233...." Fuentes v. Shevin, supra, 407 
U.S. at 80. Due process permits a variance in the 
form and scope of a hearing "appropriate to the 
nature of the case." Mullane v. Central Hanover 
Bank & Trust Co., supra, 339 U.S. at 313; Cafe­
teria Workers v. McElroy, 367 U.S. 886, 895 
(1961); Boddie v. Connecticut, 401 U.S. 371, 378
(1971). But the Court has "traditionally insisted



- 94 -

that, whatever its form, opportunity for that 
hearing must be provided before the deprivation at 
issue takes effect." Fuentes v. Shevin, supra, 
407 U.S. at 82.

In support of its motions requesting restric­
tions on communications, Gulf relied upon unveri­
fied statements of unnamed informants who asserted 
that plaintiffs' counsel engaged in "improper" 
conduct. These statements were rebutted by 
sworn statements of plaintiffs' counsel denying 
the unsworn hearsay. . The district court explained 
neither the factual nor the legal basis for its 
orders; the court did not issue findings of fact' 
or conclusions of law.-^-^ " [I]ssuance of an 
order . . . without an adequate statement of the 
reasons for the order does not meet minimum 
standards of procedural fairness and regularity." 
Sargeant v. Sharp, 579 F.2d 645, 647 (1st Cir. 
1978). See, supra at part I B of the argument.

67/ Gulf, recognizing the indefensibility of the 
unexplained orders, speculates as to the legal 
reasoning of the lower court. Gulf states 
that "[a]fter assuring itself that the concilia­
tion agreement provided complete relief (JA 
71-80), the district court granted the request 
[made by Gulf] to resume the conciliation process 
... " Br, p. 25. First, there is nothing in 
the record to suggest that the court reviewed the



95

Finally, the district court even failed to 
timely consider the plaintiffs' motion to commu­
nicate with class members during the period when 
Gulf made its back pay offers and solicited 
waivers. It is unnecessary in this case to 
indicate the precise form of hearing which due 
process requires in these circumstances. See,

67/ continued

conciliation agreement or the applicable law, much 
less that it "assured itself" that the "agreement 
provided complete relief." Second, in support of 
its assertion Gulf refers merely to the conclusory 
statements of government officials; facts regard­
ing the sufficiency or lack of sufficiency of 
the agreement were never presented to the court. 
Third, the agreement standing by itself raises 
considerable doubt as to whether or not it pro­
vides full relief. See, supra, pp.7-8, n.8.

For example, the affirmative action provi­
sions appear to lock in discrimination. The 
agreement provides for a "goal" to fill one of 
every five vacancies in some "target classifica­
tions" and one of every seven vacancies in other 
such classifications with "a Negro, a Spanish- 
surnamed American or a female." See, supra, pp. 
4-5, n.5. Gulf may meet these goals through hire 
or promotion. _Id_. It is clear that the ratio for 
"affirmative action" selection, 20% or 14%, is 
substantially below the level of blacks, Spanish- 
surnamed Americans and women in the relevant labor 
force. This is true regardless of how the appro­
priate labor market is defined, as demonstrated by



supra, at pp. 93-94. Under any possible standard, 
the procedures followed by the district court

67/ continued

the following table.

% Minorities 
and Women

% Blacks % SSA % White

SMSA Work­
force 46.37 18.9 3.75 23.72

SMSA "Blue 
Collar" 27.11 19.9 4.18 3.03

Port Arthur 
Workforce 59.49 34. 58 6.13 18.78
Port Arthur 

"Blue 
Collar"

47.10 37.43 6.96 2.71

SOURCE: U.S . Bureau of the Census, 1970 Census of
Population, General Social and Economic Character­
istics, PC (1) - (45) (Texas), Table 86 at pp. 
542-543, Table 93 at pp. 633-634, Table 99 at pp. 
711-712 ("Blue Collar" includes persons listed as 
"craftsmen, foremen and kindred workers," "opera­
tives, except transport and equipment operatives" 
and "laborers, except farm").

Thus the proportion of blacks, Spanish-sur- 
named Americans and women in the possible relevant 
workforces for the production and maintenance jobs 
varies from 27.11% to 59.49%. There was no 
explanation presented to the district court, or to 
the black workers, for the "affirmative action 
goals" of 14% or 20% which were, in fact, substan­
tially below the proportion of blacks, Hispanics 
and women which would be expected to fill Gulf's 
jobs even in the absence of affirmative action.



97

failed to conform to due process.

Ill

THE ORDERS ARE INCONSISTENT WITH THE FEDERAL
RULES OF CIVIL PROCEDURE. 68/

The source of the district court's authority 
to regulate the conduct of class actions is Rule 
23(d), Fed. R. Civ. Pro., which provides that 
courts may make "appropriate order[s]" dealing 
with procedural matters in Rule 23 actions. 
Orders and local rules inconsistent with Rule 23 
are unauthorized. See, e.g., Eisen v. Carlisle & 
Jacquelin, 417 U.S. 156, 177-178 (1974) (prelimi­
nary inquiry as to merits); Coles v. Marsh, supra, 
560 F . 2d at 189 (communications order); Rodgers 
v. United States Steel Corp., supra, 508 F.2d at 
163-164 (communications rule).-^-^

68/ Constitutional adjudication may be unnec­
essary if non-constitutional grounds are disposi­
tive. See, Hagans v. Lavine, 415 U.S. 528, 549
(1974); Rodgers v. United States Steel Corp., 
508 F.2d 152, 163-164 (3d Cir.), cert, denied,
423 U.S. 832 (1975).

69/ See also, Sanders v. Russell, 401 F . 2d 
241, 245-248 (5th Cir. 1968); McCargo~v. Hedrick,



- 98

A. The Orders Are Inconsistent with Rule 
23.

Rule 23(d) "is concerned with the fair and 
efficient conduct of the action." Advisory 
Committee Notes, Proposed Rules of Civil Proce­
dure, 39 F.R.D. 69, 106 (1966). The general 
purpose of the class action procedure is to 
"achieve economies of time, effort and expense, 
and [to] promote uniformity of decisions as to 
persons similarly situated." Id. at 102, 103 
(Rule 23(b)(3)). Often "[ejconomic reality 
dictates that [a] suit proceed as a class action 
or not at all," Eisen v, Carlisle & Jacquelin, 
supra, 417 U.S. at 161.

69/ continued

545 F .2d 393, 401-402 (4th Cir. 1976). Local 
rules are authorized by Rule 83, Fed. R. Civ. 
Pro. (a district court "may from time to time 
make and amend rules governing its practice not 
inconsistent with these rules"), and 28 U.S.C. 
§2071 (district court "rules shall be consistent 
... with rules of practice and procedure pre­
scribed by the Supreme Court"). Thus, local rules 
must conform to Rule 23. Rodgers v. United States 
States Steel Corp., supra, 508 F.2d at 163-164.



99

"The aggregation of individual claims in 
the context of a classwide suit is an evolu­
tionary response to the existence of injuries 
unremedied by the regulatory action of 
government. Where it is not economically 
feasible to obtain relief within the tradi­
tional framework of a multiplicity of small 
individual suits for damages, aggrieved 
persons may be without any effective redress 
unless they may employ the class-action 
device."

Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 
326, 339 (1980). Thus, "the First Amendment prin­
ciple that groups can unite to assert their rights 
as effectively and economically as practicable," 
United Transportation Union v. State Bar of Mich­
igan, supra, 401 U.S. at 580, is consistent with 
the purposes of class action 1 it igat ion

Moreover, injunctive and declaratory relief

70/ Petitioners mistakenly assert that the Court 
has construed Rule 23 to grant the courts "broad 
authority" to enter appropriate orders because 
"class actions are a special kind of litigation." 
Br, p. 14. Instead, the Court has found that 
judicial authority to regulate class actions is 
bounded by the language and history of Rule 23. 
Eisen v. Carlisle & Jacquelin, supra, 417 U.S. at 
177 (notice requirements and preliminary determi-



100

actions under Rule 23(b)(2) were specifically 
intended to include "various actions in the civil 
rights field where a party is charged with dis-

70/ continued

nation of merits); see, Oppenheimer Fund, Inc. 
v . Sanders, 437 U.S. T40, 3 56 et seqi (19 7 8).
In Coopers & Lybrand v. Livesay, 437 U.S. 463, 
470 (19 78) , where the issue was the "death 
knell" doctrine of interlocutory appeal, the 
Court specifically declined to be drawn into 
the debate over whether the class action is 
"a vexatious kind of litigation" or "serves 
a vital public interest," because "policy argu­
ments, though proper for legislative considera­
tion, are irrelevant to the issue we must de­
cide. "

"There are special rules relating to 
class actions and, to that extent, they 
are a special kind of litigation. Those 
rules do not, however, contain any unique 
provisions governing appeals. The appeal- 
ability of any order entered in a class 
action is determined by the same standards 
that govern appealability in other types of 
litigation."

Id. In Deposit Guaranty National Bank v. Roper, 
supra, 445 U.S. at 339, where the issue was 
appe alab ility and mootness, the Court again 
specifically declined an invitation to stem 
the "potential for misuse of the class action 
mechanism."



101

criminating against a class," Advisory Committee, 
Note, supra, 39 F.R.D. at 103, such as the in­
stant action. "Suits alleging racial or ethnic

70/ continued

"That there is a potential for misuse of the 
class-action mechanism is obvious. Its 
benefits to class members are often nominal 
and symbolic, with persons other than class 
members becoming the chief beneficiaries. 
But the remedy for abuses does not lie in 
denying the relief sought here, but with 
re-examination of Rule 23 as to untoward 
consequences."

The "potential for misuse" referred to in 
Roper is plaintiffs' counsel's incentive to 
increase the size of the class for fee-spreading 
purposes, a consideration absent here because any 
fees would be awarded by the court and would not 
ordinarily depend on the size of the class.
Petitioners' reliance on Livesay and Roper is 
therefore erroneous.

Petitioners' suggestion that "the 'potential 
for misuse' has often matured into actual abuse of 
the class action device resulting in harmful 
effects on the rights of potential class members," 
Br, p. 15, is indistinguishable from similar 
claims made in Livesay and Roper, and is "irrele­
vant," Livesay, supra, 437 U.S. at 470, as a



102

discrimination are often by their very nature 
class suits, involving classwide wrongs." East 
Texas Motor Freight System, Inc, v. Rodriquez, 431 
U.S. 395, 405 (1977); Potts v. Flax, 313 F.2d 284, 
289 (5th Cir. 1963) (cited by the Advisory Com­
mittee). Class action treatment and relief are 
particularly appropriate in the enforcement of 
Title VII, which "vest[s] federal courts with 
plenary powers to enforce the statutory require­
ments," Alexander v. Gardner-Denver Co., 415 U.S. 
36, 47 (1974), in order "to achieve equality of 
employment opportunities and remove barriers that 
have operated in the past to favor an identifiable 
group of white employees over other employees." 
Griggs v. Duke Power Co., 401 U.S. 424, 429-430 
(1971). '"The provisions of this subsection are 
intended to give the courts wide discretion

70/ continued

matter of law. See, supra pp. 45-48. Of course, 
on this record showing complete absence of 
"abuse," the suggestion is also "irrelevant" as a 
matter of fact, as the Fifth Circuit found. See, 
supra at 17, 22, 24. As the Court put it in 
Oppenheimer Fund, Inc, v. Sanders, supra, 437 
U.S. at 363, In the context of class member 
identification expenses, "[a] bare allegation of 
wrongdoing ... is not a fair reason for requiring 
a defendant to undertake financial burdens and 
risks to further a plaintiff's case."



103

exercising their equitable powers to fashion the 
most complete relief possible.' ... 118 Cong. Rec. 
7168 (1972)." Albemarle Paper Co. v. Moody, 422
U.S. 405, 421 (1971).  ̂ Plaintiffs in Title VII 
litigation are "private attorneys general vindicat­
ing a policy that Congress considered of the 
highest priority." Franks v. Bowman Transportation 
Co_. , 424 U.S 747, 763 (1976); Albemarle Paper Co. 
v- Moody, 422 U.S. 405, 415 (1975).

"There is no question but that important 
speech and associational rights are involved in 
this effort by the NAACP Legal Defense and Educa­
tional] Fund, Inc., to communicate with potential 
black class members on whose behalf they seek to 
litigate issues of racial discrimination." 
Rodgers v. United States Steel Corp., supra, 508 
F.2d at 163. Restrictions on communications 
such as those imposed in the instant case are 
also inconsistent with the policy underlying Rule

JLA/ "The 1 972 amendments retained the
private right of action as 'an essential 
means of obtaining judicial enforcement of 
Title VII,' Alexander v. Gardner-Denver Co., 
suPra at 45, while also giving the EEOC broad 
enforcement powers."

General Telephone Co. v. EEOC, 446 U.S. 318 
332-333 ( 1 9 8 0 ) . -------------



104

23 "in favor of having litigation in which common 
interests, or common questions of law or fact 
prevail, disposed of where feasible in a single 
lawsuit," id_. , and they impair plaintiffs' 
activities which are "directed toward effectuating 
the purposes of Rule 23 by encouraging common 
participation in the litigation of ... discrimina­
tion claim[s].* Coles v. Marsh, supra, 560 F . 2d 
at 189. This led the Third Circuit to hold in 
Rodgers, with respect to a local rule modeled on 
the Manual, that the district courts were not 
empowered "to require prior judicial approval of 
communications between plaintiffs, or their 
attorneys, and third parties, when such communi­
cations seek to encourage common participation in 
a lawsuit," 508 F.2d at 164. Coles held, with 
respect to an order substantially similar to the 
one here, that the district court "lacked power to 
impose any restraint on communication for the 
purpose of preventing the recruitment of parties 
plaintiff or ... the solicitation of financial or 
other support to maintain the action." 560 F.2d 
at 189. Similarly, the Fifth Circuit en banc 
ruled in the instant case that "[b]ecause we hold 
that the order violates the First Amendment, it



105

follows that it cannot be an 'appropriate order' 
under Rule 23(d) of the Federal Rules of Civil 
Procedure." (JA 268; see, also, JA 269-275 
(Tjoflat, J. , specially concurring); JA 276 (Fay, 
J., issuing a special concurring statement)).

B. Rule 23 Should Be Construed So As
To Avoid Grave Doubts of Unconstitu- 
tionality.

Courts have "favored that interpretation of 
legislation which gives it the greater chance of 
surviving the test of constitutionality," and it 
must be assumed that Congress is "sensitive to and 
respectful of the liberties of citizens." Ex 
parte Endo, 323 U.S. 283, 299-300 (1944); Kent v. 
Dulles, 357 U.S. 116, 1 30 (1958). The Court
does "not assume that Congress chose to disregard 
a constitutional danger zone,". Yates v. United 
States, 354 U.S. 298, 319 (1957), and has therefore 
construed provisions "in the direction of constitu­
tional policy." Regional Rail Reorganization Act
Cases, 419 U.S. 102, 134 (1974). It has, there­
fore, long been the rule, as Justice Holmes put 
it, that "[a] statute must be construed, if fair­
ly possibly, so as to avoid not only the conclusion 
that it is unconstituitonal, but also grave doubts



106

upon that score." United States v. Jin Fuey Moy, 
241 U.S. 394, 401 (1916); United States v. Stan­
dard Brewery, 251 U.S. 210, 220 (1920); ICG v . 
Oregon-Washington R. & Nav. Co. , 288 U.S. 14, 40 
(1933). Thus, Rule 23 should be construed as not 
authorizing the imposition of prior restraint on 
communications by plaintiffs or their counsel 
with actual or potential class members in class 
actions.



107

CONCLUSION

The opinion and order of the Fifth Circuit 
en banc should be affirmed.

Respectfully submitted,

JACK GREENBERG 
PATRICK 0. PATTERSON*
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

BARRY L. GOLDSTEIN
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005

ULYSSES GENE THIBODEAUX 
425 Alamo Street 
Lake Charles, Louisiana 70601

STELLA M. MORRISON
1015 East Gulfway Drive 
Port Arthur, Texas 77640

Attorneys for Respondents

*Counsel of Record



Addendum A



May 1, 1976

Daar Mr. Hayes:

In line with i ts  continuing policy of providing equal opportunity to 
all employees and annuitants. Gulf has. recently entered into an agreement 
with the United States Equal Employment Opportunity Commission and the U. S. 
Department of the interior. As part of the written agreement, Gulf has 
identified certain employees and annuitants to whom back pay will be offered 
in settlement of past discrimination claims, even though Gulf does not admit 
to having discriminated against anyone. You are a member or this group or 
employees and annuitants, and should you accept the terms of this offer, you 
will immediately receive by certi ried. mai 1 $ 1,163.34 less legal deductions 
for social security, if applicable, and income tax. The amount of your back 
pay was figured according to your plant seniority date, and very probably 
will not be the same as that of anyone else presented an offer under the 
agreement.

Because this offer is personal in nature, Gulf asks that you not discuss 
i t  with others. Gulf will likewise respect your complete privacy by not bis- 
closing the amount offered you to other employees or annuitants. Even though 
both you and Gulf may feel that you have not been discriminated against in 
any way by Gulf, the money is available to you upon acceptance. To hel̂ p you 
make a decision, Gulf wants you to understand that the only condition ^for 
accepting back pay is that you sign a written statement releasing Quit from 
any possible claims of employment discrimination occurring bei-ore the date 
of your release, including any future effects of alleged past practices. Of 
course, in all other ways you will - retain full rights to administrative and 
legal processes.

Enclosed you will find a written “Receipt and General Release1'. You 
may imriediate ly reteive your back pay check by completing all questions on  ̂
the Receipt and General Release, signing before a Notary Public and returning 
i t  in the self-addressed envelope provided. Services of a Notary Public will 
be provides at no charge by calling S83-3301, ext. 484 or 457. Once you have 
returned the signed Receipt and General Release, you should receive your check 
by mail within 7 to 10 days.



I* you fe“I that you cannot respond because you do not understan 
-Ulfs*offer you may contact Mr. C. 3. Draper at 9S3-3301, ext. 457, 
during normal business hours, to arrange an interview with a governme 
representative who will, answer your questions.

Equal Employment Opportunity 
Commission Gul

3y :

Oil Co. - U. S.

Enclosure



Addendum B



The Company has asked you to sign a release. If you do, you may be giving

up very important civil rights. It is important that you fully understand 

what you are getting in return for the release. IT IJS IMPORTANT THAT YOU TALK 

TO A LAITYZR BEFORE YOU SIGN. These lawyers will talk to you FOR FREE;

STELLA M. MORRISON 
440 Austin Avenue 
Room 516
Port Arthur, Texas 77640 
(713) 985-9353

BARRY L. GOLDSTEIN
ULYSSES GENE THIBODEAUX 

10 Columbus Circle 
Suite 2030
New York, New York 10019  ̂
(212) 586-8397

CHARLES E. COTTON
348 Baronne Street 
Suite 500
New Orleans, Louisiana 70112 
(504) 522-2133.

These lawyers represent six of your fellow workers in a lawsuit titled 
Bernard v. Gulf Oil Co., which was filed in Beaumont Federal Court on behalf 
of all of you. This suit seeks to correct fully the alleged discriminatory 
practices of Gulf.

Even if you have already signed the release, talk to a lawyer. You may 
consult another attorney. If necessary, have him contact the above-named 
lawyers for more details. All discussions will be kept strictly confidential.

AGAIN, IT IS IMPORTANT THAT YOU TALK TO A LAWYER. Whatever your decision 
might be, we will continue to vigorously prosecute this lawsuit in order to 
correct all the alleged discriminatory practices at Gulf Oil.



MEUEN PRESS INC. —  N. Y. C. 319