Correspondence from Lani Guinier to Paola Maranan, Esq. (Civil Liberties Union of Alabama)

    No. 80-441

IN THE

Supreme Court of the Jfutieh States
October Term, 1980

GULF OIL COMPANY, ET AL„ 
Petitioners,

v.
WESLEY P. BERNARD, ET AL., 

Respondents.

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The Fifth Circuit

PETITIONERS’ REPLY BRIEF

Wm . G. D uck 
Susan R. Sew ell 
P. O. Box 3725 
Houston, Texas 77001 
(713) 754-2953 
Attorneys for Petitioner 
GULF OIL COMPANY
Carl A. Parker 
1 Plaza Square 
Port Arthur, Texas 77640 
(713) 985-8814
Attorney for Petitioners 
INTERNATIONAL AND  
LOCAL UNIONS

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



TABLE OF CONTENTS
Page

I. Introduction .......................................... .. 2

II. The Special Responsibility of the Litigator ................. 3

III. The Order Under Review ..................... ........................ .. 4

IV. Conclusion .................................................. .................... . 13

TABLE OF AUTHORITIES

CASES Page

Arizona v. Washington, 434 U.S. 497 (1978) .......................  6, 7,8
Armstrong v. Manzo, 380 U.S. 54S (1965) ..................... .. 2
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ................... 10
Buckley v. Valeo, 429 U.S. 1 (1976) ............................. .. 9
Coles v. Marsh, S60 F.2d 186 (3d Cir. 1977), cert, denied,

434 U.S. 985 (1977) ............................... ...............................  7
Puentes v. Shevin, 407 U.S. 67 (1972) ........ ........................  2
Goldjarb v. Virginia State Bar, 421 U.S. 773 (1975) . . . .  3
Huard-Steinheiser, Inc. v. Henry, 280 F.2d 79 (6th Cir.

1960) ...........................................      7
In  Re Primus, 436 U.S. 412 (1978) ........ .................... .. 2, 3, 4, 7
In Re U. S. Financial Securities Litigation, 609 F.2d 411 

(9th Cir. 1979), cert, denied sub nom., Gant v. Union
Bank, 446 U.S. 929 (1980) ..........................................  5

Mallory v. Citizens Utilities Co., 342 F.2d 796 (2d Cir.
1965) ..........................................................    6

Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306 (1950) ...........................................     2

NAACP v. Button, 371 U.S. 415 (1963) ................................  2 ,3 ,4
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) 3
Payton v. Abbott Labs., 86 F.R.D. 351 (D. Mass. 1980).. 3
Shelton v. Tucker, 364 U.S. 479 (1960) ...............................  12
United States v. MacQueen, 596 F.2d 76 (2d Cir. 1979) . .  7
United Mineworkers v. Illinois Bar Association, 389 U.S.

217 (1967) .............................................................................  5
United States v. Grasso, 600 F.2d 342 (2d Cir. 1979), rev’d

on other grounds. 629 F.2d 805 (2d Cir. 1980) ............... 7
Wade v. Hunter, 336 U.S. 684 (1949) ......................... .. 8



II

Page
c o n s t i t u t i o n a l  p r o v is io n s , s t a t u t e s

RULES AND REGULATIONS

Civil Rights Act of 1964, Title VII, 42 U.S.C. § 200Qe
et seq. (1974) .......................................................................

Fed. R. Civ. P. 23 .......................................................................
Fed. R. Civ. P. 52(a) .................................................................
Sup. Ct. R. 21.1(a) ....................... .............................................

OTHER AUTHORITIES

Manual for Complex Litigation, 1 (Pt. 2) J. Moore Federal 
Practice Pt. II, § 1.41 (2d ed. 1980) .....................3, 5, 6, 9,12,13

O
S 

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\ 

tO



No, 80-441

IN  THE

kxprsme Court of the JMmtefr ,States
October Term, 1980

GULF OIL COMPANY, ET AL., 
Petitioners,

v.
WESLEY P. BERNARD, ET AL., 

Respondents.

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The Fifth Circuit

PETITIONERS’ REPLY BRIEF

This reply brief is submitted by Petitioners in response 
to the briefs filed by the Respondents and by the amici 
who also urge affirmance of the judgment of the Court 
of Appeals.



2

ARGUMENT
I. Introduction

Respondents’ brief contains two dominant themes: 
(1) the presumed merit of the underlying cause of action; 
and (2) the danger which this case presumably presents 
to the continued vitality of the first amendment speech 
and associational concerns set out in NAACP v. Button, 
371 U.S. 415 (1963) and In Re Primus, 436 U.S, 412 
(1978). The first of these themes is, of course, irrelevant 
to a proper disposition of this Court’s limited grant of 
certiorari.1 It is also quite unfair to the Petitioners who, 
at this point, have not yet had the opportunity to present 
fully their position at the trial level.2 Like many Title VII 
actions, the substantive issues in this case are not easy. 
Indeed, they occupied Gulf and the cognizant federal 
agencies for over seven years before the filing of this 
action. At this stage Respondents’ lengthy, ex parte pre­
sentation of the matter is premature and, indeed, renders 
more difficult the task of focusing on the important issue 
upon which this Court has granted certiorari.3

1. Respondents, by way of anticipating their argument, dispute 
the formulation of the question presented by the Petitioners and 
upon which this Court granted certiorari. But see Supreme Court 
Rule 21.1(a).

2. As Respondents note in their brief, (R. Br. 70) due process 
of law involves not only the right to proper notice but also the right 
to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 
U.S. 306, 314 (1950). See also Fuentes v. Shevin, 407 U.S. 67, 80 
(1972), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). 
Petitioners have not yet had that opportunity to be heard.

3. Respondents’ continued unsupported assertions of liability 
in this case (before any discovery has taken place) (R. Br. 7, 
8, 94-96) support Petitioners’ position that monitoring orders are 
necessary. It can only be assumed that Respondents’ speech before



3

Respondents’ second major theme, a perceived threat 
to the continued vitality of Button and In Re Primus is, 
we submit, simply not responsive to the question before 
the Court. In the following paragraphs, we shall set forth, 
albeit briefly, our reasons for submitting that these two 
cases ought not control the Court’s disposition of this case.

II. The Special Responsibility of the Litigator
The fundamental flaw in the Respondents’ character­

ization of this case is their failure to recognize fully and 
to deal frankly with the particular demands of class action 
litigation. Certainly all lawyers are, in all aspects of their 
professional work, “officers of the courts.” Goldfarb v. 
Virginia State Bar, 421 U.S. 113, 792 (1975). However, 
when they appear as counsel in a particular case, they 
have a special “fiduciary responsibility not to engage in 
public debate that will redound to the detriment of the 
accused or that will obstruct the fair administration of 
justice.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 
601 n.27 (1976) (Brennan, J., concurring). This special 
duty to the court during ongoing litigation falls on all 
attorneys engaged in litigation irrespective of their clients, 
their fee arrangements or the nature of the arguments 
which they are tendering to the court.4

the assembled potential class members was equally zealous and 
optimistic about their chances of success on the merits and their 
ability to recover substantial damages against Petitioners. The dis­
trict court’s entry of the order was justified since, as one court 
found in applying the Manual’s requirements: “Plaintiffs’ counsel’s 
enthusiasm has led them to make optimistic statements about yet 
unresolved legal and factual issues in this case which I believe are 
not justified and much of the material filed in the court has been 
studded with overheated rhetoric.” Payton v. Abbott Labs., 86 F.R D 
351, 352 (D. Mass. 1980).

4. While this Court recognized in NAACP v. Button, 371 U.S. 
415 (1963) that the NAACP Legal Defense Fund has “a corporate



4

Consequently,: it simply is not correct to assert, as 
Respondents do (R. Br. 43), that the relationship between 
the attorneys of record in this litigation and the potential 
class members was the same as the relationship between 
the attorneys and possible plaintiffs in Button and Primus. 
As we noted in our opening brief (P. Br. 16), the district 
court and those appearing before it, have a special obliga­
tion to assure that members of the potential class receive 
complete and accurate information so that they may 
exercise their rights in an informed manner and in a 
manner compatible with the purpose of class actions.

III. The Order Under Review
With respect to the order under review,5 Respondents’ 

reliance (R. Br. 33) on the general proposition that

reputation for expertness in presenting and arguing the difficult 
questions of law that frequently arise in civil rights litigation” id. 
at 422, it has never intimated that different rules of litigation conduct 
ought to apply to this organization or any other group. Respondents 
forcefully argue that the role of the Legal Defense Fund in this 
litigation is distinguishable from that of counsel who use the legal 
process for “purely private gain,” (R. Br. 37), but, in fact, of the 
attorneys who appeared and addressed the assembled potential class 
members only one, Ulysses Gene Thibodeaux, was, at that time, a 
staff attorney with the Legal Defense Fund. The other two attorneys, 
Ms. Stella M. Morrison and Mr. Charles E. Cotton were private 
practitioners who would benefit personally and financially from any 

^  award of attorneys fees. (See Ms. Morrison’s affidavit where she 
states an award of attorneys fees would be accepted by her; but she 
does not indicate whether the fee would be turned over to the Legal 
Defense Fund. J.A. 118-20). Ms. Morrison also stated in her affidavit 
she has retainer agreements with 34 members of the potential class; 
but she failed to state how each of these arrangements was solicited. 
(J.A. 118-20). Mr. Cotton, who also attended the meeting, neither 
submitted an affidavit nor explained his economic relationship with 
the plaintiffs.

S. Respondents’ claim that the validity of three separate orders is 
before .the Court. The temporary order issued by Judge Steger on 
May 28, 1976, expired by virtue of its own terms upon Judge



5

broad 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 Mineworkers v. Illinois Bar Associa­
tion, 389 U.S. 217, 222 (1967), does little to resolve the 
concrete problem before this Court. The district court 
here was hardly dealing with a “very distant possibility of 
harm.” United Mineworkers, supra at 223. Rather, the 
trial judge was dealing with a type of proceeding and a 
stage in the litigation process known to cause serious 
problems of fairness. He could draw not only upon the 
collective wisdom and experience of his fellow judges 
who, in drafting the Manual for Complex Litigation, B re­
printed in 1 (Pt. 2) J. M oore F ederal P ractice Pt. II, 
§ 1.41 (2d ed. 1980) (hereinafter cited as Manual) had 
noted the particular danger of confusion and unfairness at 6

Fisher’s entertainment of Petitioner’s motion to modify, filed on 
June 8, 1976. (J.A. 45). Significantly, during the pendency of that 
interim order, Respondents did not seek modification of the order 
and they did not demonstrate that during that short period, they were 
harmed in any way.

Respondents motion for permission to communicate with members 
of the proposed class, filed July 6, 1976, was made pursuant to the 
terms of Judge Fisher’s order of June 22, 1976 (J.A. 130), and is 
therefore, merely an application of that order. As Petitioners note, 
p. 11, infra, this motion of Respondents is a good example of the 
sort of abuse which the Manual for Complex Litigation model order 
was intended to prevent.

6. “The Manual is designed to provide for the fair, firm, and 
efficient judicial control of complex litigation. (Citation omitted). 
A district judge is not left in the position of a captain whose ship, 
larking a rudder and throttle, proceeds at its own speed in its own 
direction. Instead, the Manual encourages and provides suggestions 
as to how the district judge should exercise control over the parties 
and give the case direction.” In Re Financial Securities Litigation. 
609 F.2d 411, 428 (9th Cir. 1979), cert, denied sub nom., Gant v. 
Union Bank, 446 U.S. 929 (1980).



6

at this stage of class action proceedings,7 but also upon the 
situation before him,8

Respondents and amid state the district court must 
make specific and formal findings before entering the 
monitoring order pursuant to Rule 23, Fed. R. Civ. P. 
(See R. Br. i Questions Presented, 22, 46-47 and Gov. 
Br. 16). But the Federal Rules of Civil Procedure do not, 
of course, require that such specific findings be made. See 
Fed. R. Civ. P. 52(a).9 Moreover, in Arizona v. Wash­

7. The Government’s amicus brief notes that <![t]his section of the 
Manual [1.41] is presently undergoing revision” (Gov. Br. 6 n.5). 
The implication is that the provision in question will no longer be 
kept in its present form. However, it should be noted that the entire 
Manual is being reexamined. At least the most recent draft of the pro­
posed revised Manual retained the provision in question. Certainly, it is 
even more relevant that, in the Manual’s most recent official update, 
the Board of Editors, despite the criticism of this section, retained 
the section noting “ [fjurther, experience continues to teach that it 
is dangerous to await the occurrence of an abuse before trying to 
correct it.” Manual (2d ed. Supp. 1980-81)

8. The situation, as the record shows, was that Respondents’ 
attorneys appeared before about 7 5 potential class members four 
days after commencing this action and discussed the issues, the type 
of relief requested and explained various problems. (J.A. 116, 118). 
The attorneys, as reported to Gulf, also advised the gathering not 
to sign the conciliation releases and to return the conciliation checks 
since by prosecuting this action Respondents’ attorneys could recover 
at least double the amount paid under the conciliation agreement. 
(J.A. 22-24). Therefore, even if this Court would hold that a district 
judge may not enter an order of this type on the basis of the ac­
knowledged difficulties which other judges have encountered in this 
area, it must still confront the fact that this case involves a signifi­
cantly greater demonstration of actual danger to the possible class 
members. Thus, this case does not raise the question of whether a 
district court may enter the model order absent a demonstration of 
abuse to the rights of potential class members.

9. Even where findings of fact and conclusions of law are re­
quired under Rule 52(a), the cases state that their entry is not 
necessary where the record supports the judgment. Mallory v. 
Citizens Utilities Co., 342 F.2d 796, 792 (2d Cir. 1965); Euard-



7

ington, 434 U.S. 497, 516-517 (1978), this Court noted 
that, with respect to the fifth amendment right of double 
jeopardy:

Since the record provides sufficient justification for 
the state-court ruling, the failure to explain that 
ruling more completely does not render it constitu­
tionally defective.

Review of any trial court decision is, of course, 
facilitated by findings and by an explanation of the 
reasons supporting the decision. No matter how de­
sirable such procedural assistance may be, it is not 
constitutionally mandated in a case such as this. 
(Cites omitted). The basis for the trial judge’s mis­
trial order is adequately disclosed by the record, — 
which includes the extensive argument of counsel 
prior to the judge’s ruling.10

The fact that the district court did not set forth 
formally how he chose to reconcile the conflicting 
statements by the parties is irrelevant. What is rele­
vant is that the conflicting statements of counsel with 
respect to how the potential class was being approached 
clearly manifested sufficient danger of abuse of the class 
action process to permit—indeed to require—the district 
court to act. It was the trial judge, not the appellate 
court, who had the opportunity to evaluate the degree to

Steinheiser, Inc. v. Henry, 280 F.2d 79, 84 (6th Cir. 1960). Even 
in first amendment cases, orders limiting communications may be 
made with “substantial support in the record” In  Re Primus, supra 
at 434, or on a “specific record” Coles v. Marsh, 560 F.2d 186, 189 
(3d Cir. 1977), cert, denied, 434 U.S. 985 (1977). .

10. Federal courts have followed this rule in federal cases. 
United States v. Grasso, 600 F.2d 342, 343 (2d Cir. 1979) rev’d 
on other grounds, 629 F.2d 805 (2d Cir. 1980); United States v. 
MacQueen, 596 F.2d 76, 83 (2d Cir. 1979).



8

which the rights of the potential class members would be 
placed in jeopardy by the continued unsupervised com­
munications of the parties and their counsel. In Ari­
zona v. Washington, 434 U.S. 497 (1978), the Court 
found that “the overriding interest in the evenhanded ad­
ministration of justice” required “the highest degree of 
respect to the trial judge’s evaluation of the likelihood 
that the impartiality of one or more jurors may have been 
affected by the improper comment,” Id. at 511. So too, 
here, the appellate court and this Court owe “the highest 
degree of respect to the trial judge’s evaluation,” ibid, 
that the situation before him could seriously mislead mem­
bers of the class who were his ultimate responsibility. “He 
is the judge most familiar with the evidence and the back­
ground of the case on trial. He has listened to the tone 
of argument as it was delivered. . . .  In short, he is far 
more ‘conversant with the factors relevant to the deter­
mination than any reviewing court can possibly be.’ See 
Wade v. Hunter, 336 U.S. 684, 687 (1949).” Id. at 514. 
While, as Respondents point out (R. Br. 46), appellate 
counsel cannot support restrictions on fundamental rights 
by conjecture, neither ought they, nor appellate courts, 
attempt to second-guess the trial judge whose familiarity 
with the case and with the parties and their counsel led 
him to conclude that he could not adquately protect the 
potential class members if he were to assume a more 
passive role.

Consequently, while it is indeed true that restrictions 
on first amendment rights should be “closely drawn to 
avoid unnecessary abridgement of associated freedoms,” 
Buckley v. Valeo, 429 U.S. 1, 25 (1976), a restriction, 
when necessary, cannot be so narrowly drawn as to render 
it impotent. Here, the order describes the forbidden con-



9

duct as precisely as the litigation situation permits.- By 
its very terms, it exempts all communications where the 
speaker asserts “a constitutional right to communicate 
with any member of the class without prior restraint.” 
(J.A. 125).11 Moreover, it is well undestood that monitor­
ing orders entered pursuant to the Manual for Complex 
Litigation are subject to frequent modification since the 
trial judge has the continuing obligation to tailor the 
terms of the order to the unfolding litigation situation. 
Indeed the Manual itself states:

Promptly after the entry of the recommended order, 
or the applicable date of the local rule in a case, and at 
all times thereafter, the court should, upon request, 
schedule a hearing at which time application for 
relaxation of the order and proposed communications 
with class members may be presented to the court. 
Because the recommended rule and order are de­
signed to prevent only potential abuse of the class 
action and are not meant to thwart normal and 
ethically proper processing of a case, the court 
should freely permit proposed communications which 
will not constitute abuse of the class action. In many 
cases, the class members will have knowledge of facts 
relevant to the litigation and to require a party to 
develop the case without contact with such witnesses 
may well constitute a denial of due process.

Manual, § 1.41.

11. Respondents’ characterization of the order as a “gag order” 
(R. Br. 27), “barring communications” (R. Br. 30) and blanket pro­
hibitions (R. Br. 73) is incorrect. The order allowed Respondents’ at­
torneys to communicate with; (1) their clients and potential clients who 
sought their advice (J.A. 125); (2) the 34 retained clients of Ms, 
Morrison (J.A. 125); (3) the over 450 individuals (J.A. 23) who had 
signed releases prior to suit (J.A. 124); (4) all potential class 
members where a prior restraint was asserted (J.A. 125); and (5). all 
individuals where prior court approval has been given. (J.A. 124).



10

Consequently, the parade of horribles which Respond­
ents contend will necessarily follow from this order (R. 
Br. 88 et seq.) are purely conjectural.12 In the course of 
the litigation, the trial court would be expected to modify 
his order in order to permit both parties to prepare ade­
quately for trial and protect their attorneys’ work product.

Moreover, contrary to the suggestion of Respondents, 
the order of the district court was not “directed at par­
ticular groups or viewpoints,” Broadrick v. Oklahoma, 
413 U.S. 601, 616 (1973), but sought to regulate, “in 
an even-handed and neutral manner” ibid., the conduct of 
all those presently engaged in litigation before the court.13 
Thus, presented with assurances by government officials14

12. Respondents contend that their discovery rights, both indi­
vidual and class, were impaired by the order (R. Br. 2, 42, 89-91), 
but Respondents neither attempted any discovery nor demonstrated 
that the order in any way prevented them from pursuing discovery 
through normal channels such as depositions or interrogatories.

13. Respondents incorrectly contend company officials were free 
to discuss the case with their black employees (R. Br. 81, 89) and 
could have intimidated witnesses and potential class members. (R. 
Br. 90). The record reflects quite the contrary. Gulf voluntarily 
suspended all conciliation discussions with potential class members 
as soon as suit was filed (J.A. 43), sought a monitoring order to be 
applied to both sides of the litigation (J.A. 21, 46, 92, 124) and 
then abided by the terms of that order by allowing the clerk of 
court to disseminate all further notice to potential class members 
(J.A. 128). There is neither record support nor allegations that Gulf 
improperly contacted potential class members either before or after 
entry of the monitoring orders.

14. The Government apparently has abandoned the sworn state­
ments of the District Director of the EEOC (J.A. 71) and the 
Regional Manager of the OFCCP (J.A. 76) that the conciliation 
agreement was a “fair and reasonable” settlement of all charges of 
discrimination and upon its fulfillment would put Gulf’s Port Arthur 
Refinery in compliance with Title VII and Executive Order 11246. 
(See Gov. Br. 1, 2, 4, 6, 20 n.lS). The Government now contends the 
May 1, 1976, letter (See Gov. Br. App. la —a letter not- in the 
record of this case), did not properly inform covered employees of



11

(J.A. 71-76) that the conciliation agreement was the 
product of an “extremely thorough and comprehensive” 
investigation (J.A. 73), was based on an examination of 
“all relevant documents and business records of Gulf” 
(J.A. 73) as well as “on-site investigations” (J.A. 73) 
and “numerous meetings with Gulfs executives” (J.A. 
73) and thus “a fair and reasonable settlement” (J.A. 
78), the district court modified its order to permit mem­
bers of the potential class to be presented with the con­
ciliation agreement. At the same time, however, he re­
quired that such contact be undertaken under the super­
vision of the court and that members of the potential class 
be informed, simultaneously, of the pendency of the pre­
sent action. (J.A. 128-129).

This evenhanded approach is not impeached by the 
district court’s subsequent denial of Respondents’ motion 
to modify further its order and to permit the Respondents 
to distribute a flyer. (R. Rr. Appx. B). Not only was this

the terms of that settlement (Gov. Br. 4, 20). The Government 
incorrectly says the letter was sent to potential class members 
(Gov. Br. 20). This was impossible since at the time the letter was 
sent, no suit had been filed and it went only to those people who re­
ceived conciliation benefits—a much smaller group than Respondents’ 
later alleged class. Ironically, the letter now so heavily criticized by 
the United States and the EEOC in their brief was required by the 
conciliation agreement (J.A. 31), approved by the EEOC (J.A. 31), 
and signed by the EEOC (J.A. 31, Gov. Br. App. 2a). Contrary to 
the Government’s and Respondents’ contention that the letter was not 
informative (Gov. Br. 20, Br. 4, 20), it explained the backpay award 
was based on seniority (Gov. Br. App. la) and it stated that questions 
about the conciliation agreement would be answered not by Gulf, but 
by the EEOC. (Gov. Br. App. 2a).

In light of the Government’s virtual abandonment of the position 
it took in the trial court, employers would be better served by always 
litigating Title VII issues rather than engaging in conciliation since 
the Government has, by its present stand, seriously undermined the 

? conciliation proccess.



12

material in a sense duplicative with the earlier communi­
cation of the district court (J.A. 128-129), it was also 
a good example of the sort of material which justifies a 
monitoring order such as the one entered in this case. 
As noted by Gulf in its motion in opposition, (J.A. 
139-145), the language in the proposed leaflet con­
tained several serious ambiguities which could have pre­
cipitated extraordinary confusion among members of the 
potential class (J.A. 140-143), and it did not comply 
with the terms of the order for submitting statements to 
the district court (J.A. 124). The plaintiffs’ proposed notice 
is also a rather graphic example of why the district court 
could not have been expected to employ a “less drastic” 
alternative, see generally Shelton v. Tucker, 364 U.S. 
479, 488 (1960), to serve their concerns about the 
fair and orderly administration of justice. It is indeed 
difficult to perceive how erroneous information dissemin­
ated to such a large and geographically dispersed group 
as “the black workers of Gulf” could have been corrected 
without imposing incalculable hardships, both financial 
and human, on a significant number of the members of 
the potential class. Moreover, in a very real sense, the 
monitoring order entered in this case, as suggested by the 
Manual for Complex Litigation, is itself a less restrictive 
alternative since it exempts from its scope all privileged 
speech and is entered on the understanding that it will be 
continually modified as the litigation progresses to meet 
the needs of the parties.15

IS. Rather than supporting the use of a monitoring order to 
control misrepresentations, both the Government (Gov. Br. 31) and 
Respondents (R. Br. 29) suggest that misrepresentations can be 
controlled by disciplinary action against the lawyers and remedial 
notice to the affected potential class members.. This suggestion ignores 
the purpose of the order which is to prevent misrepresentations rather



13

Finally, by failing to suggest any test to this Court 
under which a monitoring order could be entered, both the 
Respondents and the Government seem to imply that the 
district court is without discretion, or has very limited 
discretion, when first amendment rights are collaterally 
affected, to enter the Manual’s suggested order. If this is 
the case, then parties and their attorneys will be cast 
against each other in an atmosphere much like a political 
campaign to solicit the favor of potential class members 
while the district court is forced to stand helplessly by.

IV. Conclusion

The decision in this case will have profound impact on 
the ability of the courts to ensure that their proceedings 
are conducted in a fair and orderly manner. Petitioners 
urge the Court to ratify the important fiduciary duty owed 
to the judicial process by those who invoke its protection

than attempting to remedy the harm done after the misrepresentations 
have been made. Furthermore, the monitoring order serves to detect 
misrepresentations at the earliest possible time so that the district 
court will know when remedial action is necessary. Without the 
monitoring order, the district court may not discover the harmful 
conduct until it is too late to employ remedial action.



14

and to recognize the special fiduciary obligation of litigat­
ing counsel to the court before which they stand.

Respectfully submitted,

Wm . G. D uck

Susan R. Sewell

P. O. Box 3725 
Houston, Texas 77001 
(713) 754-2953
Attorneys for Petitioner 
GULF OIL COMPANY

Carl A. Parker 
1 Plaza Square 
Port Arthur, Texas 77640 
(713) 985-8814
Attorney for Petitioners 
INTERNATIONAL AND 
LOCAL UNIONS



15

CERTIFICATE OF SERVICE

I hereby certify that on the ___  day of March,
1981, a true and correct copy of the foregoing Petitioners’ 
Reply Brief was deposited in the United States Post Office 
with first class postage prepaid and properly addressed to 
the following parties to this action and others required 
to be served:

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

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

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

_______________
Wm . G. Duck



Tf ■■