WIlliams v. Matthews Company Supplemental Brief in Support of Petition for a Writ of Certiorari

    Bnpvmw ©mart of %  In xtxb States
October Term, 1974 

No. 74-296

I n  the

D. C. W illiam s ,

v.
Petitioner,

M atth ew s  C o m pan y , et al.

SUPPLEMENTAL BRIEF IN SUPPORT OF THE 
PETITION FOR A WRIT OF CERTIORARI

J ack  G reenberg 
J am es  M. N abrit , III 
S ylvia  D rew  
E ric S ch napper

10 Columbus Circle
New York, New York 10019

J o h n  W . W alker  
Walker, Kaplan & Mays, P.A. 

622 Pyramid Life Building 
Little Rock, Arkansas 72201

Attorneys for Petitioner



I N D E X

T able of A ttthobities

Cases: page

Blue Bell Boot Inc. v. EEOC, 418 F,2d 355 (6th Cir. 
1969) ....      4

Graniteville Co. (Sibley Div.) v. EEOC, 438 F.2d 32 
(4th Cir. 1971) ...................................... .......... ............... 4

Hall y. Werthan Bag Corp., 251 F.2d Supp. 184 (M.D. 
Tenn. 1966) ..........................     3

Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 
1968) ...................................................................   4

Johnson v. Georgia Highway Express, Inc., 417 F,2d 
1122 (5th Cir. 1969) ..........................  4

Weathers v. Peters Realty Corp., 499 F.2d 1197 (6th 
Cir. 1974) ................................................................... 1,2,3

Rules:

Rule 23(b)(2), Fed. R. Civ. P .........................................  1,3
Supreme Court Rule 24(5) ...............      1

Other Authority:

Wright & Miller, 7 Fed. Pract. and Proc. §1771 (1972) 3



In the

§>upmu£ (Urntrt of tljp States
October Term, 1974 

No. 74-296

D. 0 . W il l ia m s ,

Y.

Petitioner,

M atth ew s  C o m pan y , et al.

SUPPLEMENTAL BRIEF IN SUPPORT OF THE 
PETITION FOR A WRIT OF CERTIORARI

Petitioner, D. C. Williams, files this supplemental brief 
pursuant to Rule 24(5) calling attention to the recent 
decision of the Sixth Circuit in Weathers v. Peters Realty 
Corp., 499 F.2d 1197 (6th Cir. 1974). The reported opin­
ion was not available at the time the Petition For A Writ 
Of Certiorari was filed. Petitioner submits that this deci­
sion adds another special and important reason to grant 
review on certiorari.

The Eighth Circuit Has Rendered a Decision in Conflict with 
the Decision of the Sixth Circuit That a Black Class Repre­
sentative Need Not Demonstrate That Other Persons Have Been 
Subjected to Racial Discrimination in Order to Maintain a Class 
Action in a Fair Housing Suit.

After finding that the Matthews Company, et al. had 
engaged in racial discrimination in their real estate oper­
ations, the Eighth Circuit ruled that the class action pur­
suant to Rule 23(b) (2), Fed. R. Civ. P., could not be main­
tained because Mr. Williams had failed to show that other



2

black persons bad attempted and been denied the right to 
purchase property from the Matthews Company.1 This 
decision is squarely in conflict with the Sixth Circuit deci­
sion in Weathers v. Peter Realty Cory., supra, 499 F.2d 
at 1199-1201, that a class action could not be dismissed 
merely because the one black class representative had not 
shown that other black persons had attempted and been 
denied the right to rent an apartment by the defendant 
realty company. The Sixth Circuit found it sufficient to 
survive dismissal that:

The plaintiff made allegations that she was discrim­
inated against because of her race. She also alleged 
that there are others of her race ‘who are, have been 
or will be seeking housing,’ at the defendant’s property. 
499 F.2d at 1200.

Mr. Williams alleged no less.2

The Eighth Circuit rested its restrictive decision on the 
rule that “a single black family is not a class.” Petition at 
A-15. On the other hand, the Sixth Circuit reasoned that:

In civil rights cases of the nature of the present case, 
the numerosity requirement is usually satisfied by the 
showing of a colorable claim by the named plaintiff who 
is a member of a larger class having potentially similar 
claims. See Wright and Miller, 7 Federal Practice and 
Procedure Sec. 1762 (1972). Although the district court

1 The Matthews Company, et al., did not affirmatively assert 
below that no black person had attempted or been denied the 
right to purchase. Indeed, the Company specifically admitted that, 
“During the past five years, several black citizens have made 
inquiry about purchasing real property within the Lakewood sub­
division but that, thus far, none have purchased real property 
therein.” Appendix on Appeal at 11.

2 In fact, Mr. Williams did more than make allegations below, 
see Petition For A  Writ Of Certiorari at 14-15.



3

has broad discretion in determining whether a par­
ticular action complies with Rule 23(a), by meeting 
all four requirements, the application of these require­
ments should not be so strictly applied that the policies 
underlying class actions would be undermined. 499 
F.2d at 1200.

See, Wright & Miller, 7 Fed. Pract. and Proc. § 1771(1972). 
The policy inherent in Rule 23(b)(2) class actions is that 
the class should be defined broadly. Id. The Sixth Circuit 
also reasoned, on a related issue, that:

The district court’s conclusion that the plaintiff’s 
motion for injunctive relief was mooted by the defen­
dant’s offer to rent the suite to her is predicated on the 
assumed absence of a party to the action who would 
benefit from such relief. The district court apparently 
reasoned that the plaintiff is entitled to pray for relief 
for herself, but not for others who it assumed were not 
properly before it. But mooting the named plaintiff’s 
personal claim for injunctive relief, does not preclude 
this form of relief if, as we have decided, the issue of 
the maintainability of a class action is still open. To 
allow a defendant to moot a “fair housing” class action 
by making concessions to the named plaintiffs would 
thwart the purposes of this important type of litigation. 
499 F.2d at 1201.

In short, the Sixth Circuit was of the opinion that racial 
discrimination is necessarily class discrimination.

The basis of the Sixth Circuit’s decision in Weathers is 
the rule governing whether a class action is justified when 
injunctive relief is sought against a practice of discrimina­
tion stated by Judge Gray in Hall v. Werthan Bag Corp., 
251 F.2d Supp. 184, 186 (M.D. Tenn. 1966):



4

Racial discrimination is by definition a class discrim­
ination. If it exists, it applies throughout the class.

This often-cited rule has been cited in employment discrim­
ination cases by the Sixth Circuit, Blue Bell Boots, Inc. v. 
EEOC, 418 F.2d 355 (6th Cir. 1969); the Fifth Circuit, 
Jenkins v. United Gas Corp., 400 F.2d 28, 35 (5th Cir. 
1968); Johnson v. Georgia Highway Express, Inc., 417 F.2d 
1122, 1124 (5th Cir. 1969); the Fourth Circuit, Graniteville 
Co. (Sibley Div.) v. EEOC, 438 F.2d 32, 37 (4th Cir. 1971) 
and numerous district courts. The decision of the Eighth 
Circuit in Williams v. Matthews Co. is thus in conflict with 
substantial authority.

CONCLUSION

For the foregoing reasons, the petition for writ of certio­
rari should be granted.

Respectfully submitted,

J ack  Greenberg 
J am es M. N abrit , III 
S ylvia  D rew  
E ric S ch napper

10 Columbus Circle
New York, New York 10019

J oh n  W . W alker  
Walker, Kaplan & Mays, P.A. 

622 Pyramid Life Building 
Little Rock, Arkansas 72201

Attorneys for Petitioner



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