Bernard v. Gulf Oil Company Brief for the United States as Amicus Curiae

    7 7-1502
No. 77-1502

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

WESLEY P. EERNARD, et al.,
Plaintiffs-Appellants 

v.
GULF OIL COMPANY, et al.,

Defendants-Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

DREW S. DAYS, III
Assistant Attorney General

BRIAN K. LANDSBERG 
CAROL E. HECKMAN 

Attorneys
Department of Justice 
Washington, D.C. 20530



TABLE OF CONTENTS
Page

QUESTION PRESENTED-----------------------------------------  *
INTEREST OF THE UNITED STATES------------------------------  2
STATEMENT----------------- - - -------------------------------- 3

1. Procedural history---------------------------------  2
2. Facts---------------------------------------------  5

SUMMARY OF ARGUMENT----------------------------------------  14
ARGUMENT:

THE DISTRICT COURT ABUSED ITS DISCRETION UNDER 
RULE 23 OF THE FEDERAL RULES OF CIVIL PROCEDURE 
WHEN IT ISSUED A NOTICE TO THE POTENTIAL CLASS 
AND SIMULTANEOUSLY IMPOSED BROAD RESTRICTIONS 
ON COMMUNICATIONS BETWEEN PLAINTIFFS' COUNSEL,
THE NAACP LEGAL DEFENSE AND EDUCATION FUND, AND 
POTENTIAL CLASS MEMBERS WITHOUT REQUIRING ANY 
FACTUAL SHOWING OF ACTUAL OR THREATENED MISCON­
DUCT BY PLAINTIFFS OR THEIR ATTORNEYS
A. Judicial Restrictions on Communications With

Potential Class Members Initiated By Plain­
tiffs or Their Counsel Can Only Be Imposed 
Under Rule 23 of the Federal Rules of Civil 
Procedure in "Appropriate” Cases, Requiring 
at a Minimum a Specific Showing of Actual or 
Threatened Misconduct or Abuse of the Class 
Action Procedure Which Has Prejudiced or Will 
Prejudice the Defendants-------------------------

B. The Efforts of Plaintiffs' Attorneys to 
Provide Information About the Lawsuit to Poten­
tial Class Members and to Answer Questions Con­
cerning Their Rights Were Neither Unethical Nor 
an Abuse of the Class Action Procedure but 
Instead Furthered the Interests of Plaintiffs 
and Potential Class Members in Accordance With
Rule 23-------------------------------------------  25
1. Defendants' unsworn allegations of mis­

conduct by the plaintiffs' attorneys at 
the May 22 meeting have been specifically 
denied by plaintiffs' attorneys and there­
fore are entitled to no weight-------------- 25

2. Defendants have failed to make any showing
of actual or threatened abuse of the class 
action procedure-----------------------------  27



Page
3. The efforts of plaintiffs' attorneys to 

provide information about the lawsuit to 
potential class members and to answer ques­
tions concerning their rights were proper 
in all respects and fully consistent with 
Rule 23---------------------------------------  30

C. The Notice Issued by the District Court 
to the Potential Class Inadequately 
Describes the Litigation and the Employees' 
Choice of Accepting or Rejecting the Back 
Pay Offer, Fails to Name Counsel for the 
Parties, and Unfairly Reinforces Gulf's
Position--------------------------------------  35

CONCLUSION------------------------------------------------ 37
TABLE OF AUTHORITIES

Cases:
Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975)------------------------------------------  23
Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974)------------------------------------------  33
Bernard v. Gulf Oil Co., 596 F.2d 1249 (5th Cir.

1979)-------------------------------------------  4,16,18,
19,22

Bridges v. California, 314 U.S. 252 (1941)------ 29
Brotherhood of Railroad Trainmen v. Virginia

ex rel. State Bar, 377 U.S. 1 (1964)----------  16
Coles v. Marsh, 560 F.2d 186 (3d Cir. 1977)----- 17,19,21,2

24,28,30
Cox v. Allied Chemical Corp., 538 F.2d

1094 (5th Cir. 1976)---------------------------  33
Craig v. Harney, 331 U.S. 367 (1947)------------  29
EEOC v. D.H. Holmes Co., 556 F.2d 787

(5th Cir. 1977)--------------------------------- 2
Eisen v. Carlisle & Jacquelin, 417 U.S. 156

(1974)------------------------------------------  17
Franks v. Bowman Transportation Co., 424 U.S.

747 (1976)--------------------------------------  23
Hagans v. Lavine, 415 U.S. 528 ( 1974)-----------  16
Held v. Missouri Pacific Railroad Co., 64 F.R.D.

346 (S.D. Tex. 1974 )---------------------------  31



Cases (continued):
Page

Hitt v. Nissan Motor Co. (In re Nissan Motor Co.,
Antitrust Litigation), (5th Cir. 1977)-------- 18

Kahan v. Rosensteil, 424 F.2d 161 (3d Cir. 1970)- 31
NAACP v. Button, 371 U.S. 415 (1963)------------  16,28
Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968) --------------------------- 25
Oatis v. Crown Zellerbach Corp., 398 F.2d 496---  25

(5th Cir. 1968)
Primus, In re, 436 U.S. 412 (1978)--------------  16
Rodgers v. United States Steel Corp., 508 F.2d 

152 (3d Cir. 1975), cert, denied, 423 U.S.
832 (1975)--------------------------------------  19,29

Rodgers v. United State Steel Corp., 70 F.R.D.
639 (W.D. Pa. 1976 )----------------------------  32,27,32,36

Rodrigues v. East Texas Motor Freight,
505 F.2d 40 (5th Cir. 1974), vacated,
431 U.S. 395 (1977)---------------------------- 32

Rothman v. Gould, 14 F.R. Serv. 2d 1541
(S.D.N.Y. 1971)--------------------------------- 31

United Mine Workers v. Illinois State Bar Ass'n.,
389 U.D. 217 (1967)--------------------------- - iS

United States v. Allegheny-Ludlum Industries, Inc., 
63 F.R.D. 1 (N.D. Ala. 1974), aff'd, 517 F.2d
826 (5th Cir 1975) cert, denied sub nom.
Harris v. Allegheny-Ludlum Industries, Inc.,
425 U.S. 944 ( 1976)-----------------------------  20,32,37

United States v. Tijerina, 412 F.2d 661 (10th Cir.
1969), cert, denied, 396 U.S. 990 (1969)-------- 29

United Transportation Union v. State Bar of Michigan,
401 U.S. 576 (1971)------------------------------  16

Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782
(E.D. La. 1977)------------------------------------ 19,23

Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 
1976), cert, denied, 429 U.S. 861 ( 1976)--------

i ii

33



cut ion and statutes:o  O fi S u l

Constitution of the United States:
First Amendment----------------------------  19,28,29
Fifth Amendment----------------------------  16

Civil Rights Act of 1964, Title VII, as amended,
42 U.S.C. 2000e et secj.---------------------  3

28 U.S.C. 1291----------------------------------  4
28 U.S.C. ( 1970 ed.) 2071----------------------- 20
42 U.S.C. 1981----------------------------------  3,4
43 U.S.C. 1988----------------------------------  2

Miscellaneous:
Federal Judicial Center's Manual for Complex Litigation

§ 1.41 (1977)--------------------------------- 10,18a,27,29
Fed. R. C iv. P. :

Rule 23---------------------------------------  2,4,16,17
18,18a,19,21 
24,30,35

Rule 23(b) (2)--------------------------------- 28,36
Rule 23(b) (3)--------------------------------- 27,28
Rule 23 (d)-----------------------------------  18,27,28,

36,38
Rule 23(d) (2)--------------------------------- 36
Rule 26(c)------------------------------------  23
Rule 83---------------------------------------  20

1 Moore's Federal Practice 11 1.41
(2d ed. 1979)--------------------- -----------  10

3B Moore's Federal Practice (2d ed. 1979):
11 2 3.70---------------------------------------  17,30,31
11 23.73---------------------------------------  17,18

Seymour, The Use of "Proof of Claim" Forms
and Gag Orders in Employment Discrimination 
Class Actions, 10 Conn. L. Rev. 920 (1978)--- 22,24,25,29



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

WESLEY P. BERNARD, et al.,
Plaintiffs-Appellants 

v.
GULF OIL COMPANY, et al.,

Defendants-Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED
_!/The following question will be addressed by the United 

States: whether the district court in this Title VII class
action abused its discretion under Rule 23 of the Federal 
Rules of Civil Procedure when it issued a notice to the 
potential class and simultaneously imposed broad restrictions 
on communications between plaintiffs' counsel, the NAACP 
Legal Defense and Education Fund, and potential class members 
in the absence of any factual showing of actual or threatened 
misconduct by plaintiffs or their attorneys.

1/ EEOC has authorized the Department of Justice to represent 
to the Court that EEOC concurs in the arguments presented in 
this brief. EEOC is filing an amicus curiae brief addressinq 
the other questions presented.



2
INTEREST OF THE UNITED STATES 

The United States Department of Justice, along with 
EEOC, is responsible for enforcing the Nation's civil rights 
laws and executive orders relating to the field of civil rights, 
and accordingly has a strong interest in ensuring that the 
effective prosecution of civil rights cases by private parties 
and their counsel is not unduly frustrated by the imposition 
without cause of broad restraints on communications between 
plaintiffs or their counsel, and the prospective class.
Cf. 42 U.S.C. 1988. The United States is also interested in 
guaranteeing that the beneficiaries of settlement agreements 
negotiated between the government and employers have an 
opportunity to make an informed choice between accepting 
the settlement and pursuing a private right of action.
Finally, since in the Fifth Circuit EEOC is subject to the 
requirements of Rule 23 of the Federal Rules of Civil 
Procedure when it prosecutes employment discrimination 
complaints, EEOC v. D. H. Holmes Co., 556 F.2d 787 (5th Cir. 
1977), cert, denied, 436 U.S. 962 (1978), the United States 
has an interest in protecting its own ability under Rule 23 
to communicate with alleged victims of discrimination.



3
STATEMENT

1. Procedural history
This class action was filed on May 18, 1976, by six 

present and former employees of Gulf Oil Company, alleging 
that the defendants had engaged in systematic and continuing 
employment discrimination against blacks at Gulf's plant
in Port Arthur, Texas, in violation of Title VII of the Civil_2/
Rights Acts 1964 and 42 U.S.C. 1981 (App. 4). Named as defendants 
are Gulf Oil Company and Oil, Chemical and Atomic Workers 
International Union, Local Union No. 4—23 (App. 66). The 
complaint charges that Gulf intentionally discriminated 
against blacks in its hiring, job assignments, promotions, 
pay, and training programs. It also challenges Gulf's discharge 
and discipline policies (App. 70-72). The local union, it is 
alleged, agreed to or acquiesced in these discriminatory 
practices (App. 72-73). The plaintiffs seek to represent a 
class composed of all present and past employees at the Port 
Arthur plant and all unsuccessful black applicants (App. 67).
They request extensive declaratory, injunctive and monetary 
relief (App. 74-76).

As more fully explained below, the court without 
requiring any factual showing of need entered three orders 
shortly after the complaint was filed prohibiting the plaintiffs 
and their attorneys from communicating with prospective 
class members (App. 30, 56-59, 157). On January 11, 1977, the

2/ "App." references are to the separately bound appendix and 
^upp. App." references are to the supplemental appendix 
attached to appellants' brief. "R." refers to the record.



4
court granted summary judgment to the defendants on the
ground that the plaintiffs' claims were barred by the applicable
statutes of limitations and the doctrine of laches (App. 181-185).

The plaintiffs then appealed to this court, asserting 
jurisdiction under 28 U.S.C. 1291. On June 15, 1979, a panel 
composed of Judges Thornberry, Godbold and Hill unanimously 
reversed the district court's grant of summary judgment and 
remanded the case for further proceedings. Bernard v. Gulf 
Oil Company, 596 F.2d 1249 (5th Cir. 1979), petition for 
rehearing en banc granted, No. 77-1502 (Sept. 27, 1979).
They found that the plaintiffs' Title VII claims had been 
filed within the 90-day statutory time limit, that the Section 
1981 claims were not barred by the applicable two-year statute 
of limitations, and that none of the claims was barred by 
the doctrine of laches. Ibid. However, the panel split on 
the question of the validity of the district court's order 
restricting communications with class members. Judges 
Thornberry and Hill, in part IV of the majority opinion, 
upheld the restraints. Ibid. at 1258-62. Judge Godbold, in a 
dissenting opinion, concluded that the restraints conflicted 
with Rule 23 of the Federal Rules of Civil Procedure and 
violated the First Amendment rights of the nam.d plaintiffs, 
their counsel, and prospective class members. Ibid. at 1262-1276.

All parties petitioned for rehearing en banc. On 
September 27, 1979, the petitions were granted.



5
2. Facts

On April 14, 1976, Gulf, EEOC and the United States 
Department of Interior entered into a conciliation agreement 
in settlement of a Commissioner's charge, filed in 1967, alleging 
widespread racial discrimination by Gulf against black

_3/employees at its Port Arthur plant. Under the agreement,
Gulf agreed to cease allegedly discriminatory practices, to 
establish an affirmative action program which included goals 
for hiring and promotions, and to offer back pay to alleged 
victims of past discrimination (App. 15-28). Each person 
identified as an "affected class member" under the agreement 
was to receive a letter, signed jointly by Gulf and EEOC, 
explaining the back pay offer and instructing those who wished to 
accept it to sign an enclosed waiver releasing Gulf from "any 
and all claims against [it] as a result of events arising 
from its employment practices occurring on or before the date 
of release, or which might arise as the result of the future

3/ The Commissioner's charge, in addition to alleging 
discrimination on the basis of sex, claims that Gulf's Port 
Arthur plant failed to hire blacks while hiring whites, 
assigned black but not white Helper Pool workers to particularly 
dirty jobs, gave permanent promotions to whites but not 
blacks, and maintained segregated facilities. Brief of EEOC 
as amicus curiae, App. C.

Shortly before the Commissioner's charge was filed, a 
large number of Gulf employees filed individual charges of 
discrimination against Gulf. After a broad investigation and 
a finding of reasonable cause, EEOC attempted to conciliate 
these complaints but was unable to do so.



6
effects of past or present employment practices" (App. 20).
Gulf agreed to mail the employees their back pay checks upon
receiving the signed release. The notice was not required to
mention the affirmative action goals or any of the other
provisions of the conciliation agreement (App. 20).

Approximately two weeks after the conciliation agreement
was signed (App. 36), Gulf sent letters offering back pay and
soliciting releases to 614 present and former black employees and

_!/
29 female employees at the Port Arthur plant (Supp. App. 3-A).
The tendering of back pay and solicitation of waivers continued 
until this suit was filed on May 18, 1976, at which time Gulf 
temporarily suspended these activities (App. 29).

According to affidavits later filed by plaintiffs' 
counsel, the named plaintiffs held a meeting in Port Arthur 
on May 22, 1976 with members of the potential class as defined 
in the complaint (App. 51, 53). At the plaintiffs’ request, 
their attorneys attended the meeting and answered questions

4/ The May 1 notice is attached to this brief as Exhibit 1. 
Although we were unable to locate this notice in the record, 
the notice sent by the district court to the prospective class 
pursuant to its June 22 order (App. 60-61) refers to and 
briefly describes Gulf's May 1 notice. See note 6, infra.
We therefore assume that the contents of the May 1 notice were 
before the district court and may properly be considered by 
this Court.

On May 6, EEOC also sent a notice to the approximately 
40 employees who had previously filed charges against Gulf.



7
concerning the conciliation agreement and the Title VII 
litigation (App. 51, 53). Because they are affiliated with 
the NAACP Legal Defense and Education Fund, a nonprofit 
organization, the attorneys at no time expected or agreed to 
receive compensation from the named plaintiffs or the class

_ 5/(App. 48).
On May 27, 1976, before responding to the complaint, Gulf 

filed a two-sentence motion for an order prohibiting communi­
cations between the parties or their counsel and actual or 
potential class members (App. 14). The motion was accompanied 
by an unsworn brief asserting that plaintiffs' attorneys at 
the May 22 meeting had told the employees not to accept 
Gulf's back pay offer and had represented that they could 
recover twice as much back pay in the pending suit (Supp.
App. 4-5A). Gulf argued that a court order prohibiting 
communication between the attorneys and the prospective 
class was necessary in order for Gulf to proceed without 
prejudice in its defense of the case and its conciliation 
efforts (Supp. App. 5-A). In its brief, Gulf revealed that

“57 Any fees ultimately awarded by the court against the 
defendants will be paid to the Legal Defense Fund rather than 
to the individual attorneys (App. 48).



8
as of May 24, approximately 452 of the 643 employees eligible 
for back pay had accepted the offer and executed general 
releases (Supp. App. 4-A).

The following day, District Judge Steger, in Chief 
Judge Fisher's absence, heard oral argument on the motion, and 
the plaintiffs' attorneys denied Gulf's allegations. Judge 
Steger on the same day entered a temporary order prohibiting 
without exception all communications with potential class 
members. The order was effective until Judge Fisher could 
return and resume control over the case. It was not accompanied 
by findings of fact or conclusions of law (App. 30-31).

On June 8, 1976, Gulf filed an unsworn motion to modify 
the temporary order so that it could resume offering back 
pay awards and receiving releases pursuant to the conciliation 
agreement (App. 32). Again by an unsworn brief attached to 
its motion, Gulf added a new allegation of misconduct, claiming 
that the plaintiffs' attorneys had recommended to the persons at 
the meeting that even if they had already signed the release they 
should return the checks to Gulf (Supp. App. 7-A).

The plaintiffs filed a responsive brief challenging 
the constitutionality of the order and the district court's 
authority to issue it. Judge Fisher held a hearing on June 10 
and allowed time for additional briefs. Accompanying their



9
next brief, the attorneys who attended the May 22 meeting 
filed affidavits in which they specifically denied each of 
Gulf's unsworn allegations of misconduct (App. 51, 54). The 
affidavits also asserted that it was necessary for the plaintiffs 
and their counsel to communicate with members of the proposed 
class in order to investigate the case, to complete discovery, 
and to define the issues involved and that, in light of the 
back pay offers made by Gulf under the conciliation agreement, 
it was of crucial importance that the plaintiffs' attorneys 
be able to provide information about the litigation and 
answer prospective class members' questions concerning their 
rights (App. 49, 51-52, 54). In their brief, the plaintiffs 
noted that many of the issues encompassed by the suit were 
not included in the matter covered by the conciliation agreement 
and that the relief provided was inadequate because the goals 
^0£g improper, there was no firm commitment to timetables, 
and there was no relief from illegal testing. They also noted 
that the back pay notices did not explain how the back pay was 
computed and made no mention of the other relief provided in 
the agreement (R. 104-105).



10
On June 22, without making findings of fact, Judge 

Fisher entered a modified order prohibiting communications 
between the parties and the prospective class (App. 56-59). 
The order, explicitly modeled on a suggested order in the 
Federal Judicial Center's Manual for Complex Litigation, 
§1.41 (1977) (hereafter cited as the Manual') , reprinted in 
1 Moore's Federal Practice 1(1.41 (2d ed. 1979), generally 
forbids communications by all parties and their attorneys 
with proposed class members concerning the lawsuit without 
prior court approval of the proposed communications (App. 
56-57). Exceptions from this prohibition include



11
communications between attorney and client, communications 
between attorney and prospective client when initiated by 
the prospective client, and communications in the "regular 
course of business" (App. 57). In addition, communications 
to which "any party or counsel for a party asserts a consti­
tutional right" may take place without prior restraint as 
long as the party or attorney files with the court a written 
copy or summary of the communication within five days of its 
occurrence (App. 57). Finally, the order instructs the 
Clerk of the Court to mail a notice to employees covered by
the conciliation agreement stating that they have 45 days in

_6/
which to accept Gulf's back pay offer (App. 58).

6/ The notice reads as follows (App. 60-61):
Pursuant to the Court's order,

I have been asked to notify you 
that there is pending in the United 
States District Court for the Eastern 
District of Texas a lawsuit styled 
Bernard, et al v. Gulf Oil Company 
and Oil, Chemical and Atomic Workers 
International Union, Local Union 
No. 4-23, being Civil Action 
No. B-76-183-CA. This is a suit 
by six individual employees at 
Gulf's Port Arthur Refinery who 
have brought this suit on their 
behalf and on behalf of all other 
individuals who are similarly



12
On July 6, 1976, the plaintiffs moved for permission 

to communicate with members of the proposed class (App. 62-64).

6/(continued) situated, and alleging that Gulf 
and the Union have discriminated 
against them and the class they 
represent in violation of Title VII 
of the Civil Rights Act of 1964 and 
the Civil Rights Act of 1866. This 
notice is being sent to you because 
you have been identified as an 
actual or potential class member 
who at some later date may be 
entitled to become a member of the 
class which the named Plaintiffs 
seek to represent.

You have received a notice from 
Gulf dated May 1, 1976, that you are 
entitled to an award of back pay under 
a Conciliation Agreement which has been 
negotiated on your behalf by the United 
States Equal Employment Opportunity 
Commission and the Office for Equal 
Opportunity, U.S. Department of Interior. 
The Court has asked me to inform you that 
at this time you have a choice of whether 
to accept the offer from Gulf dated May 1, 
1976, and receive the back pay award as 
stated in that letter or you 
may decline to accept that offer 
at this time and at some later date 
be considered for inclusion in the 
class of individuals which the 
Plaintiffs seek to represent in 
the above mentioned lawsuit. If 
you decide to accept Gulf's offer, 
you should execute the receipt 
and release enclosed in Gulf's 
letter to you dated May 1, 19' ., 
and return it to Gulf within 45 
days from the date of this letter.
If this is done, you will receive
your back pay awarded 
thereafter.



- x j -
_7/Claiming that the communication was constitutionally protected, 

they attached to the motion the notice which they proposed 
to distribute, which urged black employees to consult a 
lawyer before signing the release (App. 65). The motion alleged 
that both Gulf's back pay offer to the employees sent in May 
and the notice sent by the Clerk failed to explain in full the 
terms of the conciliation agreement (App. 63). On August 10, two 
days after the 45 days for accepting Gulf's offer had expired, 
the court denied the plaintiffs' motion in a one-sentence 
order without explanation or findings (App. 157). This appeal 
followed the court's entry of summary judgment for the defendants 
on January 11, 1977 (App. 181-185).
6/(continued)

If you do not execute the 
receipt and release and deliver 
it to Gulf within 45 days from 
the date of this letter, it will be 
presumed that you do not wish to 
accept the offer contained in Gulf's 
letter of May 1, 1976. Any award 
you might receive as a result of 
the above mentioned lawsuit will 
depend upon whether you are included 
in any class so certified by the Court 
and whether the class is declared 
entitled to an award of back pay by 
the Court.

/s/________________________Clerk, U.S. District Court 
Eastern District of Texas

7/ Although the order of June 22 allows the plaintiffs to 
engage in constitutionally protected communications prior to 
obtaining court approval if copies or summaries are filed withir 
5 days, the plaintiffs decided to seek court permission first 
since they had already been charged with unethical conduct.



14
JMMAKY OF ARGUMENT

Shortly after this Title ,11 class a:t:.oa against Gulf 
Oil Company was filed, the district court imposed broad 
restrictions on the plaintiffs’ and their attorneys' ability 
to communicate with members of the potential class. This 
action was an abuse of the district court's discretion under 
Rule 23 of the Federal Rules of Civil Procedure because it 
was not based upon a specific showing of actual or threatened 
misconduct or abuse of the class action procedure which has 
prejudiced or will prejudice the defendants.

The efforts of plaintiffs and their attorneys to 
provide information about the lawsuit to potential class 
members and to answer questions concerning their rights were 
fully consistent with Rule 23. The plaintiffs and their 
attorneys are entitled under Rule 23 to encourage common 
participation in a lawsuit. They are also entitled to assist 
the potential class members in deciding to accept or reject 
the conciliation agreement negotiated between EEOC and Gulf. 
This assistance is particularly justified in this case because 
Gulf has failed to fully inform the potential class of the 
terms of the proposed settlement and of the consequences of 
signing the release. Moreover, Gulf has failed to substantiate 
its unsworn allegations of unethical and improper conduct.



15
The district court also abused it discretion under 

Rule 23(d) in directing the Clerk of the Court to notify the 
potential class members of Gulf's back pay offer. The notice 
is defective on its face because it fails to adequately 
describe this litigation or the consequences of accepting 
Gulf's offer and fails to name counsel for the parties. In 
addition, by giving the employees a second chance to accept 
Gulf's back pay offer without fully describing it, the notice 
unfairly reinforces Gulf's position.



16
ARGUMENT

THE DISTRICT COURT ABUSED ITS DISCRETION UNDER RULE 23 
OF THE FEDERAL RULES OF CIVIL PROCEDURE WHEN IT ISSUED A 
NOTICE TO THE POTENTIAL CLASS AND SIMULTANEOUSLY IMPOSED 
BROAD RESTRICTIONS ON COMMUNICATIONS BETWEEN PLAINTIFFS'
COUNSEL, THE NAACP LEGAL DEFENSE AND EDUCATION FUND, AND 
POTENTIAL CLASS MEMBERS WITHOUT REQUIRING ANY SHOWING OF 
ACTUAL OR THREATENED MISCONDUCT BY PLAINTIFFS OR THEIR ATTORNEYS

A. Judicial Restrictions on Communications With
Potential Class Members Initiated by Plaintiffs 
or Their Counsel Can Only be Imposed Under 
Rule 23 of The Federal Rules of Civil Procedure 
In "Appropriate" Cases, Requiring at a 
Minimum a Specific Showing of Actual or 
Threatened Misconduct or Abuse of The Class 
Action Device Which Has Prejudiced or Will 
Prejudice the Defendants

The restrictions imposed by the district court on the 
plaintiffs' and the Legal Defense Fund's ability to communicate 
with members of the potential class of black employees raises 
serious questions under the First Amendment. In re Primus,
436 U.S. 412 (1978); NAACP v. Button, 371 U.S. 415 (1963).
See also United Transportation Union v. State Bar of Michigan, 401 
U.S. 576 (1971); United Mine Workers v. Illinois State Bar 
Ass'n , 389 U.S. 217 (1967); Brotherhood of Railroad Trainmen v. 
Virginia ex rel. State Bar, 377 U.S. 1 (1964). Judge Godbold, 
in his dissenting opinion, 596 F.2d at 1270-1275, and the appellants 
have presented cogent arguments on these questions. Where a 
statutory basis exists for reaching a decision, however, the 
constitutional questions need not be addressed. Hagans v.



17
Lavine, 415 U.S. 528, 543 (1974). Since we believe that 
the queston of whether the district court abused its discretion 
under Rule 23 in restricting communications between the 
plaintiffs and their attorneys on the one hand and the potential 
class on the other is dispositive, this amicus curiae brief only 
addresses this question.

Rule 23 authorizes the district court to issue 
"appropriate orders * * * (3) imposing conditions on the 
representative parties or on intervenors * * The purpose
of the rule is to give the trial judge power to avoid 
potential abuses of the class action device and to safeguard 
the interests of absent class members by authorizing properly 
framed orders controlling the conduct of class actions.
3B Moore's Federal Practice 1123.70 (2d ed. 1979). Orders which 
are commonly issued under this authority include orders 
consolidating several actions, designating general counsel, 
requiring the party asserting class action status to submit 
a more precise definition of the class, and fixing reasonable 
cut-off dates for intervention. Id. 1(23.73. Although the 
grant of authority is broad, it is not unlimited. See, 
e .g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)
(finding that the district court lacked authority under Rule 23 
to condition maintenance of a class action on a preliminary 
showing by the plaintiffs of substantial probability of prevailing 
on the merits); Coles v. Marsh, 560 F.2d 186 (3d Cir. 1977)



18
(finding that an order virtually identical to the order of 
June 22 issued in this case was inconsistent with Rule 23 
and was not based on proper statutory authority). See also 
Hitt v. Nissan Motor Co. (In re Nissan Motor Co. Antitrust 
Litigation), 552 F.2d 1088,1096 (5th Cir. 1977). Orders 
issued under Rule 23(d) must be consistent with the purposes 
underlying Rule 23, warranted by the particular facts of the 
case, and within the court's "sound judicial discretion." 3B 
Moore's, supra, 1(23.73 at 23-492.

Since the district court's orders restricting 
communications with the class were based on its authority 
under Rule 23(d), the question before the district court was 
whether the orders sought by the defendants were "appropriate" 
given the record before it. As Judge Godbold points out in 
his dissent from the panel's opinion, the determination of what 
is appropriate in a given case involves an exercise of discretion, 
and orders that go beyond sound judicial discretion are 
subject to reversal on appeal. 596 F.2d at 1267.

The government submits that in employment discrimination 
cases it is never "appropriate" or within the district court's 
oound judicial discretion under Rule 23 to place such broad 
restrictions as were imposed in this case on th^ plaintiffs' 
and their attorneys' ability to communicate with potential 
class members in the absence of any factual showing of actual 
or threatened misconduct or abuses of the class action device 
which have prejudiced or will prejudice the defendants. At 
a minimum, this much is required in order to protect the



19
interests of the potential class, and the plaintiffs' rights 
to discover their case and to encourage common participation 
in a lawsuit in accordance with Rule 23. Coles v. Marsh,
560 F.2d 186 (3d Cir. 1977).

A similar standard has been adopted by the Third 
Circuit, the only Court of Appeals that has considered the 
issues raised by restrictions on contacts with class members. 
The court has repeatedly struck down such restrictions, all of 
which were imposed without any factual showing of misconduct 
or prejudice, as both inconsistent with Rule 23 and violative 
of the First Amendment. In Rodgers v. United States Steel 
Corp., 508 F.2d 152 (3rd Cir. 1975), cert, denied, 423 U.S. 832 
(1975), a Title VII case, the court invalidated a local rule 
imposing a complete ban on unapproved counsel-initiated 
contacts with the class, holding that the district court has 
no statutory power to require prior judicial approval of 
communications between the plaintiffs and potential class 
members where such communications seek to encourage common

_8/ Although several district courts have issued orders
restricting communications between the parties and the class, 
only one has given thorough consideration to the court's 
statutory and constitutional power to do so. In Waldo v, 
Lakeshore Estates, In., 433 F. Supp. 782 (E.D. La. 1977), the 
district court (J. Boyle) upheld a local rule modeled upon 
the Manual's proposal. The bulk of the opinion addresses the 
constitutional arguments against its validity (discussed in 
Judge Godbold's dissent, 596 F.2d at 1274-1275). In a final 
paragraph, the court dismisses the argument that the rule is 
inconsistent with Rule 23. Its reasons for doing so are 
largely inapplicable in this case, and are not persuasive.
See pp. 27-28, infra.



20
participation in the lawsuit. After the class action had 
been filed but before it had been certified, the defendants 
sought and received permission to solicit releases from and 
award back pay to members of the potential class pursuant to 
the terms of an industry-wide consent decree negotiated 
between EEOC and the steel industry. United States v. 
Allegheny-Ludlum Industries, Inc., 63 F.R.D.l (N.D. Ala.
1974), aff'd 517 F.2d 826 (5th Cir. 1975), cert, denied 
sub nom. Harris v. Allegheny-Ludlum Industries, Inc., 425 
U.S. 944 (1976). However, the district court, without making 
any findings of need to restrict contacts, denied 
the plaintiffs' motion to communicate with the class. The 
Third Circuit found that the local rule was an attempt to 
regulate the practice of law rather than an effort to protect 
the integrity of court procedures and that it impermissibly 
restricted the availability of the class action device "to 
those litigants willing to submit to an assertion of a dual 
power by the court -- the power to postpone class action 
determination and to impose a prior restraint in the meantime.

_ vSupra at 162.

9/ The court found that the local rule violated the Rules 
Enabling Act, 28 U.S.C. §2071 (1970), and Rule 83 of the 
Federal Rules of Civil Procedure. These provisions give the 
district courts authority to adopt local rules which are 
consistent with Acts of Congress and the Federal Rules of 
Civil Procedure.



21
The local rule invalidated in Rodgers contained 

neither the enumeration of prohibited conduct (see pp. 27-28 
infra) nor the exceptions (see pp. 10-11, supra) found in 
Judge Fisher's order of June 22. Coles v. Marsh, 560 F.2d 
186 (3d Cir. 1977), however, made clear that these additions 
were not sufficient to overcome constitutional and statutory 
objections to orders restricting communications with potential 
class members. Coles involved a Title VII action in which 
the district court prior to class certification issued an 
order virtually identical to the order of June 22 issued by 
Judge Fisher in this case. The defendants' motion for the 
order was based on deposition testimony of the named plaintiff 
in which she indicated that she had contacted potential 
class members and the NAACP in an effort to interest them in 
the suit and that her attorney had made no effort to restrict 
her communications. Again finding that the order frustrated 
the purposes of Rule 23 and was an unauthorized attempt to 
regulate the practice of law, the Third Circuit set forth 
the standard to be applied by the district courts in ruling 
on motions to restrict certain communications, id. at 189:

We hold that to the extent that the 
district court i.s empowered under Rule 83 
to restrict certain communications in 
order to prevent frustration of tne 
policies of Rule 23, it may not exercise 
the power without a specific record 
showing by the moving party of the 
particular abuses by which it is 
threatened. Moreover, the district 
court must find that the showing 
provides a satisfactory basis for 
relief and that the relief sought



22
would be consistent with the policies 
of Rule 23 giving explicit consideration 
to the narrowest possible relief which 
would protect the respective parties.
Imposition of an order on anything less 
than a clear showing of particularized 
need to remove it from the area of 
discretion unreviewable by mandamus.

10/
This standard should be adopted by the this Court.

A necessary implication of the panel's majority opinion 
is that orders restricting communications with the potential 
class are "appropriate" in every uncertified Title VII class 
action. For a number of reasons, this position is untenable.

10/ Judge Godbold, in his dissenting opinion, articulates 
the standard as follows, 596 F.2d at 1269:

Pretermitting constitutional limits, 
it seems to me that the district 
court must find that restrictions are 
"appropriate" upon a factual showing 
by*’ the moving party that unsupervised 
communications between counsel and 
named plaintiffs on one hand and 
potential class members on the other 
have materialized into actual abuses 
of the class action device or that 
abuses are imminently threatened.

See also Seymour, The Use of "Proof of Claim" Forms and Gag 
OrdersTn Employment Discrimination Class Actions, 10 Conn. 
L. Rev. 920, 943 (1978).



23
First, it seriously handicaps the named plaintiffs' 

ability to litigate their individual claims of employment 
discrimination. Victims of employment discrimination have an 
unquestionable statutory right under Title VII to fully litigate 
their grievances in federal court and to have access to the 
full range of federal procedural protections and remedies 
available to other federal court litigants. Recognizing the 
strong national policy against employment discrimination, 
the Supreme Court has consistently upheld the right of private 
individuals to seek a full remedy from the effects of employment 
discrimination. Franks v. Bowman Transportation Co., 424 
U.S.747 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405 
(1975). This right necessarily includes full access to the 
discovery techniques contemplated by the Federal Rules of 
Civil Procedure, which can be restricted only upon a showing 
of "good cause." Rule 26(c). By limiting the plaintiffs' 
right to contact class members, the court necessarily interferes 
with their discovery of the case and their efforts to further 
define the issues involved. Access to potential class members 
is essential in order to investigate their complaints, to 
prepare witnesses and to supplement through interviews the 
documentary material available from the defendants.



24
It is no answer to state that only unapproved discovery 

is prohibited by the order. Court approval of discovery 
measures not only imposes a tremendous burden, especially in 
a large complex class action, but also raises the difficult 
question of whether the plaintiffs' discovery requests should 
be served on the defendants and, if so, what implications this 
would have for the work-product privilege and the attorney-client 
privilege. See Seymour, supra, 10 Conn. L. Rev. at 942.

It is also no answer to point out that the order 
nominally restricts both the plaintiffs and the defendants in 
their access to the class. The same order instructs the Clerk 
of the Court to give notice to the class of the defendants' 
back pay offer. This notice not only gives defendants indirect 
access to the employees but also gives the defendants' offer 
the stamp of court approval.

A second reason why a restriction on communications 
with class members would not be "appropriate" in every 
Title VII case is that it tends to undermine two fundamental 
purposes of Rule 23, to expedite the disposition of similar 
cases and to lessen the cost of litigation. Rule 23 gives 
the plaintiffs a right to encourage common participation in a 
lawsuit. Coles v. Marsh, supra, at 560 F.2d 189. This right 
is particularly significant under Title VII, which is partly 
dependent for its enforcement on class actions. Minority 
employees who, with the assistance of counsel, prosecute such



25
actions to eradicate unlawful discrimination are advancing a 
national policy of "the highest priority." Newman v. Piggy Park 
Enterprises, Inc., 390 U.S. 400, 401-402 (1968); Oatis v. Crown 
Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968), It is inconsistent 
with these policies to restrict the utility and effectiveness 
of a class action suit without some showing of need.

Finally, as a practical matter a general restriction 
on communications with potential class members unreasonably 
restricts their access to counsel at a time when they may be 
in the process of deciding, as they were in this case, whether 
to pursue their rights to litigate their claims of employment 
discrimination or to accept the terms of a conciliation 
agreement. Seymour, supra, 10 Conn. L. Rev. at 937-939.
The interests of absent class members are best protected if 
plaintiffs' counsel is available to provide information about 
the litigation and to explain their rights. This consideration 
is discussed more fully in specific reference to the facts 
of this case at pp. 31-34 infra.

B. The Efforts of Plaintiffs' Attorneys to Provide 
Information About the Lawsuit to Potential Class Members and 
to Answer Questions Concerning Their Rights Were Neither 
Unethical nor an Abuse of The Class Action Procedure but 
Instead Furthered the Interests of Plaintiffs and Potential 
Class Members in Accordance With Rule 23

Defendant's unsworn allegations of misconduct 
by the plaintiffs' attorneys at the May 22 meeting 
have been specifically denied by plaintiffs' 
attorneys and therefore are entitled to no weight

1.



26
The basis for the defendants' original motion for an 

order prohibiting communications between the parties and the 
potential class was the claim that the plaintiffs' attorneys 
had engaged in unethical conduct at the May 22 meeting by 
discussing the conciliation agreement and the lawsuit and 
urging the potential class members to participate in the 
litigation rather than accept Gulf's back pay award.
Defendants argue that an order was necessary "[i]n order to 
prevent further communications of this type by all parties 
and their counsel to this suit * * *" (Supp. App. 5-A).
The allegations of misconduct, however, were contained in an 
unsworn brief and were never subsequently confirmed by 
affidavit or sworn testimony. Similarly, in support of their 
motion to modify the original order so that Gulf could continue 
soliciting releases and awarding back pay, the defendants 
made unsworn allegations of misconduct and those allegations 
also remain unsubstantiated (Supp. App. 7-A). In contrast, 
the attorneys present at the May 22 meeting have specifically 
denied under oath each allegation of the defendants. (App. 
51,54) On this state of the record, there is no basis for 
finding that any unethical conduct occurred or was likely

177 Although these allegations are denied in affidavits by the 
pTaintiffs' attorneys (App. 51-54), it is by no means clear 
that they allege unethical conduct. The defendants' failure 
to substantiate the allegations, however, makes consideration 
of this question unnecessary.



27
to occur in the future. Despite Gulf's presentation of the 
allegations as if they had been tried and found, the defendants 
have failed to present any evidence of actual or threatened 
misconduct by the plaintiffs or their attorneys. To the extent 
that the court's order was based on Gulf's allegations, it was 
a clear abuse of discretion.

2. Defendants have failed to make any showing 
of actual or threatened abuse of the class 
action procedure

The order entered by Judge Fisher on June 22 adopts in 
substance a proposed local rule recommended in §1.41 of the 
Manual, forbidding unapproved direct or indirect written or 
oral communications by formal parties or their counsel and 
class members who are not formal parties. The Manual was 
written by the Federal Judicial Center, and provides guidelines 
to federal district courts for the efficient administration 
of complex and multidistrict litigation. It is not a binding 
authority.

The Manual1s proposal is designed to prevent four 
types of potential abuses of the class action process, which 
are specifically enumerated in both the proposal and Judge 
Fisher's order: (a) solicitation of legal representation of class 
members who are not formal parties, (b) solicitation of 
fees, (c) solicitation by defendants of requests to opt out 
of the class pursuant to Rule 23(b)(3), and (d) "[unauthorized 
direct or indirect] communications from counsel or a party,



28
may * * * misrepresent the ststus ( purposes and effects 

of the class action, and of any actual or potential Court 
orders therein which may create impressions tending, without 
cause, to reflect adversely on any party, any counsel, this 
court, or the administration of justice." (App. 57). The 
first two types of abuses are inapplicable in this case 
because the plaintiffs' attorneys are affiliated with the 
NAACP's Legal Defense and Education Fund and have no financial 
interest in soliciting potential class members (App. 48).
The third type of abuse is not at issue in this case.

The only arguable basis for a finding of potential 
abuse of the class action process is (d). Misrepresentation 
of the status, purpose or effects of the action and of court 
orders by either party or the attorneys might well be cause 
for concern, if it occurs. But in this case, as already 
discussed, there is no showing of misrepresentation or even 
the reasonable likelihood thereof. The mere possibility of 
misrespresentation, present in every case, is not sufficient 
justification to impose such sweeping restrictions on 
communications. Coles v. Marsh, supra, 560 F.2d at 189.



29
The Manual cites Craig v. Harney, 331 U.S. 367 (1947), 

Bridges v. California, 314 U.S. 252 (1941), and United States v. 
Tijerina, 412 F.2d 661 (10th Cir.), cert, denied, 396 U.S. 990 
(1969), in support of the district court's inherent power to 
prohibit unapproved contacts with class members. In each of 
these cases, the First Amendment rights of the press and the 
parties to comment on pending trials were balanced against 
the right to a fair trial. In the two Supreme Court cases, 
the First Amendment rights were held to outweigh the right to 
a fair trial. These cases simply do not support unbridled 
discretion in the district court to regulate communications 
between counsel and class members. The Third Circuit was 
undoubtedly correct when it found that the authors of the 
Manual "probably went too far" in relying on these cases.
Rodgers , supra, 508 F.2d at 165; see also Seymour, supra,
10 Conn. L. Rev. at 942-943. The district court's reliance 
on the Manual without requiring a factual showing of actual 
or potential abuses of the class action procedure was an
abuse of discretion.



30
3. The efforts of plaintiffs’ attorneys to provide

information about the lawsuit to potential class
members and to answer questions concerning their
rights were proper m  all respects and fully 
consistent with Rule 23

In order to expedite the disposition of similar cases,
Rule 23 authorizes named plaintiffs to encourage common participa­
tion in a lawsuit. Coles v. Marsh, supra, 560 F.2d at 189.
It is noteworthy that the defendants have not challenged the 
named plaintiffs' right to conduct meetings for this purpose.
Absent a showing of unethical conduct, the plaintiffs' attorneys, 
as agents of the plaintiffs, are as free as the plaintiffs 
to attend and participate in such meetings.

In this case, the attorneys were invited by the plaintiffs 
to attend the May 22 meeting "to discuss the issues involved in 
the lawsuit, the types of relief requested, and to generally 
explain some of the administrative and legal problems inherent in 
fair employment litigation." Affidavit of Ulysses Gene Thibodeaux 
at 2 (App. 51). Their actions of attending the meeting, providing 
information about the lawsuit, and answering questions of potential 
class members were in no sense improper and were fully consistent 
with the plaintiffs' authority under Rule 23 to encourage common 
participation in a lawsuit.

Another primary concern underlying Rule 23 is the protect .on 
of the interests of absent class members. 3B Moore's Federal



31
12/Practice 1123.70. ( 2d ed. 1979). The information provided by

the attorneys about the recently filed lawsuit had a critical 
bearing on the employees' choice of accepting Gulf s settlement 
offer or proceeding with the litigation. These efforts to 
inform potential class members of their rights were fully 
consistent with the goal of safeguarding the interests of 
absent class members.

The conduct of plaintiffs and their attorneys was not in 
any respect rendered improper by the existence of a conciliation 
agreement in the process of implementation by Gulf. To the 
contrary, given the record in this case as discussed below, 
the efforts of plaintiffs' attorneys to provide information 
to the potential class were fully justified and proper attempts 
to protect the interests of the named plaintiffs and to ensure 
that minority employees made an informed and voluntary choice 
between accepting the benefits of the conciliation agreement and 
pursuing their private right of action.

T27 The policies underlying Rule 23 are applicable prior to 
the court's determination of whether the action may proceed 
as a class action. 3B Moore's Federal Practice 11 23.80 [3] 
(2d ed. 1979). The obligations of the court, the named 
oiaint.iffs and their counsel to protect the interests of the 
potential class arise immediately upon the filing of a class 
action complaint. See, e.g., Kahan v. Rosensteil, 424 F. 2d 
161, 169 (3d Cir. 1970), cert, denied, 398 U.S. 950 (1970); 
Held v. Missouri Pacific Railroad Co., 64 F.R.D. 346 (S.D. 
Tex 1974); Rothman v. Gould, 14 F.R. Serv. 2d 1541, 1542 
(S.D.N.Y 1971 ) .



32
Although there is a strong federal policy favoring volun­

tary settlement of employment discrimination claims, individual 
victims of employment discrimination have an absolute right under 
Title VII to reject the terms of a conciliation agreement nego­
tiated between the government and the employer. United States v. 
Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 848 n. 26 (5th 
Cir. 1975), cert, denied sub nom. Harris v. Allegheny-Ludlum 
Industries, Inc., 425 U.S. 944 (1976). The individual claimant 
can proceed to trial even after the conciliation agreement 
has been approved by the court as fair, lawful and reasonable. 
Ibid.; Rodriguez v. East Texas Motor Freight, 505 F.2d 40 
(5th Cir. 1974), vacated on other grounds, 431 U.S. 395 (1977).

In order to ensure that victims of employment discrimina­
tion have a meaningful opportunity to choose between accepting 
the terms of a conciliation agreement and proceeding with an 
independent lawsuit, the courts have carefully scrutinized the 
contents of court notices sent to employees. The employee must 
be given full apprisal of all relevant facts. United States v. 
Allegheny-Ludlum Industries, Inc., 63 F.R.D. 1 (N.D. Ala. 1974), 
aff1d , 517 F .2d 826 (5th Cir. 1975); Rodgers v. United States 
Steel Corp., 70 F.R.D. 639 (W.D. Pa. 1976). The employee 
also must be given "ample opportunity to reflec*- and seek 
advice" concerning his or her choice. Id. at 647. Releases
solicited in conjunction with an offer of settlement pursuant



33
to a conciliation agreement or consent decree must be the 
product of a knowing and voluntary waiver by the employee of 
his or her rights. Alexander v. Gardner-Denver Co., 415 U.S.
36, 52 n. 15 (1974). A waiver of remedial rights guaranteed 
by federal civil rights laws "is not lightly to be inferred." 
Watkins v. Scott Paper Co., 530 F .2d 1159, 1172 (5th Cir.), 
cert, denied, 429 U.S. 861 (1976). Before it may be concluded 
that an employee has elected to waive the right to present a 
claim of discrimination in a judicial forum, it must be shown 
that at the time of executing the release the employee was given 
a full explanation of the consideration for the waiver and that 
the employee fully understood the extent of the bargain. Cox v. 
Allied Chemical Corp., 538 F.2d 1094, 1098 n. 5 (5th Cir. 1976), 
cert, denied, 434 u.S. 1051 (1977).

In this case, the potential class members were faced 
with a choice between accepting Gulf's back pay offer or 
being considered for possible inclusion in the plaintiffs' 
class action. Prior to the May 22 meeting, the only informa­
tion they had received concerning their options was Gulf's 
letter offering back pay. See note 3, supra. They had 
never seen a copy of the conciliation agreement entered 
into between Gulf and EEOC, or had its terms explained to 
them. Nor had they seen a copy of the Commissioner's charge
that triggered the settlement discussions.



34
The information made available to the potential class 

members prior to the May 22 meeting, contained in Gulf's 
notice, was clearly insufficient to enable them to make an 
intelligent choice between accepting Gulf's back pay offer 
and pursuing their private right of action. The notice does 
not describe any provisions of the agreement, such as the 
affirmative action goals, other than the back pay offer.
Its description of the back pay offer fails to explain the 
formula used to compute the amount of each employee's offer 
or the general basis for the offer. Rather than encouraging 
the employees to reflect on and seek advice concerning the 
offer, the notice instructs the employees not to discuss the 
offer with anyone. It urges employees to sign a general release 
but at the same time informs them that they otherwise retain 
full rights to administrative and legal processes (Ex. 1).

Since the employees had never seen the concilia­
tion agreement or had it explained to them, they had no way of 
knowing that it did not address several major areas of alleged 
discrimination, including testing and seniority, which were 
alleged in the plaintiffs' complaint and which would be waived 
by signing the release. Under all of these circumstances, 
the plaintiffs and their attorneys were certainly justified 
in meeting with the potential class in order to provide 
objective information concerning the suit. Rather than 
attempting to undermine the settlement, the plaintiffs and 
their attorneys were acting in a manner that was fully 
consistent with Rule 23.



35
C. The Notice Issued by the District Court 

to the Potential Class Inadequately Des­
cribes the Litigation and the Employees'
Choice of Accepting or Rejecting the Back
Pay Offer, Fails to Name Counsel for the Parties,
and Unfairly Reinforces Gulf's Position

The court directed the Clerk of the Court to send a 
notice to employees affected by Gulf's back pay offer pursuant 
to its authority under Rule 23(d)(2) of the Federal Rules of Civil 
Procedure, which reads as follows:

(d) Orders in Conduct of Actions. In 
the conduct of actions to which this rule 
applies, the court may make appropriate 
orders: * * * (2) requiring, for the 
protection of the members of the class or 
otherwise for the fair conduct of the 
action, that notice be given in such manner 
as the court may direct to some or all of 
the members of any step in the action, or 
of the proposed extent of the judgment, or 
of the opportunity of members to signify 
whether they consider the representation 
fair and adequate, to intervene and present 
claims or defenses, or otherwise to come 
into the action * * * .

Rather than protecting the interests of absent class members, 
however, the court's notice unreasonably restricts their 
opportunity to make a meaningful choice between accepting Gulf's 
offer and remaining as a potential class members in the plaintiffs' 
litigation.



36
The notice is defective on its face in at least two 

respects. First, it fails to give a complete description of 
the litigation, mentioning only that a claim of employment 
discrimination has been filed by six employees on behalf of 
the class and naming the suit. This description contrasts 
sharply with the lengthy, thorough description of the litigation 
and the employee's rights approved in United States v. Allegheny 
-Ludlum Industries, supra, and in Rodgers v. United States 
Steel Corp., 70 F.R.D. 639, 644-645 (W.D. Pa. 1976). Second, 
it fails to name the attorneys for the parties. As a result, 
potential class members who had questions concerning their 
rights were deprived of the most likely sources of information.
See Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782, 790 
(E.D. La. 1977).

In addition, considering the preceding events, the notice 
appears to give Gulf's position the court's stamp of 
approval by giving affected employees a second chance to accept 
the offer and also by failing to supplement Gulf's first 
notice of May 1. Although the order restricting communications 
with the class on its face applies equally to all parties, 
the effect of the court notice is to give Gulf another opportunity 
to persuade its employees to accept its offer, while at the 
same time depriving the plaintiffs of an opportunity to contact 
the potential class.



CONCLUSION
For the foregoing reasons, the orders of the district 

court should be reversed and the judgment should be vacated 
and the case remanded to the district court for further 
proceedings.

Respectfully submitted,
DREW S. DAYS, III
Assistant Attorney General

(Lz'U-?BRIAN K. LANDS BERG 
CAROL E. HECKMAN 

A ttorneys
Department of Justice 
Washington, D.C. 20530



CERTIFICATE OF SERVICE
I hereby certify that on the day of October, 1979,

two copies of the foregoing Brief for the United States as
Amicus Curiae were served on all counsel by United States
mail, postage prepaid, addressed as follows:

Stella M. Morrison 
1015 East Gulfway Drive 
Port Arthur, Texas 77640
Ulysses Gene Thibodeaux
One Lakeside Plaza, 7th Floor
Lake Charles, Louisiana 70601
Charles E. Cotton
Suite 500 - 343 Baronne Street
New Orleans, Louisiana 70601
Barry L. Goldstein 
733 15th, Street, N.W.
Washington, D.C. 20005
Jack Greenberg 
Patrick 0. Patterson 
10 Columbus Circle 
New York, New York 10019
William G. Duck 
P.O. Box 3725 
Houston, Texas 77001
Carl Parker
440 Stadiuim Road,
Port Arthur, Texas 77640
Lutz A. Prager
Equal Employment Opportunity 

Commiss ion 
2401 E Street, N.W.
Washington, D.C. 20506

CAROL E. HECKMAN 
Attorney



May 1, 1976

Dear Mr. Hayes:

In line with i t s  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 
identi f ied certain employees and annuitants to whom back pay wil l  be offered 
in settlement of past discrimination claims,  even though Gulf  does not admit 
to having discriminated against  anyone. You are a member of  this group of  
employees and annuitants,  and should you accept the terms of  this o f f e r ,  you 
will  immediately receive by certi  f  i ed. mai 1 $ 1,163.34 less legal deductions 
for social  security,  i f  appl i cabl e,  and income tax.  The amount o f  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 o f f e r  under the 
agreement.

Because this of f e r  is personal in nature,  Gulf asks that you not discuss  
i t  with others.  Gulf  will  likewise respect your complete privacy by not di s ­
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 help 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 Gulf  from 
any possible claims of  employment discrimination occurring before the date 
of your release,  including any future e f f e c t s  of  alleged past practi ces.  Of  
course, in all  other ways you wil l  retain f ul l  rights to administrative and 
legal processes.

Enclosed you will  find a written "Receipt and General Release".  You 
may immediately refceive 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 wil l  
be providea at no charge by c a l l i ng  983-3301, ext .  484 or 467. Once you have 
returned the signed Receipt and General Release,  you should receive your check 
by mail within 7 to 10 days.

Exhibit 1



If you feel that you cannot respond because you do not understan 
Gulf's offer, you may contact Mr. C. 3. Draper at 983-3301, ext. 467, 
during normal business hours, to arrange an interview with a governme 
representative who will, answer your questions.

Equal Employment Opportunity
Commission Gulf Oil Co. - U. S.

By:
B. F. Short

Enclosu re

Exhibit 1