Barnard v. Gulf Oil Company Petition for Rehearing and Suggestion for Rehearing En Banc

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 77-1502

WESLEY P. BERNARD, et al.„

Plaintiffs-Appeliants,

vs.

GULF OIL COMPANY, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District of Texas

PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING EN BANC

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

ULYSSES GENE THIBODEAUX 
425 Alamo Street 
Lake Charles, Louisiana 70601

CHARLES E. COTTON
Suite 500 - 348 Baronne Street 
New Orleans, Louisiana 70601

BARRY L. GOLDSTEIN
806 15th Street, N.W.
Washington, D.C. 20006

JACK GREENBERG
PATRICK O. PATTERSON 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 77-1502

WESLEY P. BERNARD,

GULF OIL COMPANY,

et al.,
Plaintiffs-Appellants, 
vs.

et al.,
Defendants-Appellees.

On Appeal from The United States District Court 
for The Eastern District of Texas

CERTIFICATE REQUIRED BY LOCAL RULE 13.6.1

The undersigned, counsel of record for the plain­
tiff s-appellants, certifies that the following listed par­
ties have an interest in the outcome of this case. These 
representations are made in order that Judges of this Court 
may evaluate possible disqualification or recusal.

1. Wesley P. Bernard, Elton Hayes, Sr., Rodney 
Tizeno, Hence Brown, Jr., Willie Whitley, and Willie Johnson, 
plaintiffs.

-  l  -



2. The class of all black employees now employed 
or formerly employed by defendant, Gulf Oil Company, in Port 

Arthur, Texas, and all black applicants for employment at 
Gulf Oil Company who have been rejected for employment at 

said company.
3. Oil, Chemical and Atomic Workers International 

Union, and Local Union No. 4-23, Oil, Chemical and Atomic 

Workers International Union, defendants.
4. International Association of Machinists and 

Aerospace Workers, Port Arthur Lodge No. 823; International 
Association of Machinists and Aerospace Workers; International 

Brotherhood of Electrical Workers, Local Union No. 390; In­
ternational Brotherhood of Electrical Workers, AFL-CIO; United 

Transportation Local Union; International United Transportation 
Union; Bricklayers, Masons, and Plasterers International Union, 
Local 13; and International Bricklayers, Masons, and Plasterers 

Union: prospective defendants named in plaintiffs' motion
to join additional defendants and for leave to amend >.he 
complaint. This motion was pending when the district court 

granted summary judgment for the existing defendants.
5. Gulf Oil Corporation, Defendant-Appellee; 

Affiliates of Gulf Oil Corporation are as follows:
Afran Bahamas Limited; Afran Transport Company;

A-Jin Chemical Company, Ltd.; American Heavy Lirt Shipping 
Company; Andogas, S.A.; Argentine Gulf Oil Company; Australian 
Gulf Oil Company; Bahamas Gulf Oil Company; Belgulf Tankers N.V. 
Bio Research Center Company, Limited; Blackships, Inc.; Bolivian



Gulf Oil Company; Brazilian Gulf Oil Company; Britama Tankers 
Limited; Bulk Petroleum Corporation; Burgan Pension Fund Trustees 
Limited; Cabinda Gulf Oil Company; Caribbean Gulf Refining Cor­
poration; China Gulf Oil Company Limited; China Gulf Plastics 
Corporation; Chinhae Chemical Company, Ltd.; Colombian Gulf Oil 
Company; Colonial Pipeline Company; Compania Ecuatoriana 
Texaco y Gulf, S.A.; Compania Maritima Rio Gulf, S.A.; Compania 
Petrolera Aguarico, S.A.; Coral Gulf Oil Company; County Airport 
Corporation; Dansk Olia-Import A/S; Det Gronlandske Olieaktieselskab; 
Dixie Pipeline Company; Eastern Gulf Oil Company Limited; Eastern 
Venezuela Gas Transport Company; Ecuadorian Gulf Oil Company;
Explorer Pipeline Company; Four Corners Pipe Line Company;
"400" Oil Co., The (A Division of Bulk Petroleum Corporation);
Frisia Minerallolien B.V.

• Gaelic Oil Company Limited, The; Global Energy 
Operations and Management Company-International (A Division 
of Transocean Gulf Oil Company); Global Energy Operations 
and Management Company, Ltd.; Global Energy Operations and 
Management Company-U.S. (A Division of Gulf Oil Corporation);
Grand Bay Co.; Gulf Agricultural Chemicals Company Limited;
Gulf Asian Investments Company Limited; Gulf Asian Services 
(A Division of Gulf Asian Investments Company Limited);
Gulf Benzin A/S; Gulf Chemicals International, Inc.; Gulf 
Computer Sciences Incorporated; Gulf Consumer Services Company 
(A Division of Gulf Oil Corporation); Gulf del Peru, S.A.;
Gulf Ecuatoriana de Petroleo, S.A.; Gulf Energy and Minerals 
Company (A Division of Gulf Oil Corporation); Gulf Energy and 
Minerals Company-International (a Division of Gulf Oil Corpora­
tion); Gulf Energy and Minerals Company-U.S. (A Division of 
Gulf Oil Corporation); Gulf Europe Company; Gulf-Gas (Norway)
A/S; Gulf-Gas (Sweden) Aktiebolag; Gulf International Company;
Gulf International Trading Company (A Division of Gulf Oil 
Corporation); Gulf International Trading Company (A Division 
of Gulf Oil Trading Company, Limited).

Gulf International Trading-Far East (A Division of 
Gulf Asian Investments Company Limited); Gulf Italia Production 
Company S.p.A.? Gulf Italiana S.p.A.; Gulf Kuwait Company;
Gulf Management Institute (A Division of Gulf Oil Corporation);
Gulf Marine and Services Company Limited; Gulf Marine Management 
Company (A Division of Afran Transport Company); Gulf Merchandis­
ing Company (A Division of Bulk Petroleum Corporation); Gulf 
Mineral Resources Co. (A Division of Gulf Oil Corporation);
Gulf Minerals Canada Limited; Gulf Oil (Antilles) Inc.; Gulf Oil 
(Belguim) S.A.; Gulf Oil Canada Limited; Gulf Oil Chemicals 
Company (A Division of Gulf Oil Corporation); Gulf Oil Chemicals 
Company Asia, Limited; Gulf Oil Communications Company, Inc.;
Gulf Oil Company-Asia; Gulf Oil Company-Eastern Hemisphere;



Gulf Oil Company (Hong Kong) Inc.; Gulf Oil Company-International 
(A Division of Gulf Oil Corporation); Gulf Oil Company-Japan (A 
Division of Gulf Oil Corporation); Gulf Oil Company-Korea (A 
Division of Gulf Oil Corporation); Gulf Oil Company-Latin 
America (A Division of Gulf Oil Corporation); Gulf Oil Company 
(Nigeria) Limited; Gulf Oil Company of Gabon; Gulf Oil Company 
(Portugal) Limitada; Gulf Oil Company-South Asia.

Gulf Oil Company-Thailand (A Division of Gulf Oil 
Corporation); Gulf Oil Company-U.S. (A Division of Gulf Oil 
Corporation); Gulf Oil European Company; Gulf Oil Financial 
Corporation; Gulf Oil Foundation of Delaware; Gulf Oil Germany, 
Inc.; Gulf Oil (Great Britain) Limited; Gulf Oil (Luxembourg) 
S.A.; Gulf Oil Marine Agency N.V.; Gulf Oil Middle East Trad­
ing Company (A Division of Gulf Oil Trading Company, Limited); 
Gulf Oil. (Nederland) 3.V.; Gulf Oil Northern Development Com­
pany (A Division of Gulf Minerals Canada Limited); Gulf Oil 
Production Company; Gulf Oil Raffinaderij B.V.; Gulf Oil Real 
Estate Development Company; Gulf Oil Refining A/S; Gulf Oil 
Refining Limited; Gulf Oil Sales, Inc.; Gulf Oil Securities 
Company, Inc.; Gulf Oil Services, Inc.; Gulf Oil (Switzerland); 
Gulf Oil Terminals (Ireland) Limited; Gulf Oil Trading Company 
(A Division of Transocean Gulf Oil Company); Gulf Oil Trading 
(Far East) (A Division of Gulf Asian Investments Company Limited) 
Gulf Oil Trading Investments Limited; Gulf Oil Zaire S.A.R.L.; 
Gulf Overseas Trading, Inc.; Gulf Petroleum S.A.

Gulf Refining and Marketing Company (A Division of 
Gulf Oil Corporation); Gulf Refining Company; Gulf Research & 
Development Company; Gulf Research Racing Company; Gulf Reston, 
Inc.; Gulf Reston Properties, Inc.; Gulf Science and Technology 
Company (A Division of Gulf Oil Corporation); Gulf Supply and 
Distribution Company Limited; Gulf Technology Europe B.V.;
Gulf Tire & Supply Company; Gulf Trading and Transportation 
(A Division of Transocean Gulf Oil Company); Gulf Trading and 
Transportation Company (A Division of Gulf Oil Corporation);
Gulf Transport Company Aktiebolag; Gulf Travel Club, Inc.;
Gulf (U.K.) Offshore Investments Limited; Hagstrom & Knape 
Oljeaktiebolag; Hutchison-Hayes International, Inc.; Hydrant 
Servicing Company Limited; Iberian Gulf Oil Company; Indonesia 
Gulf Oil Company (A Division of Gulf Oil Corporation); In­
dustrial Asphalt (A Division of Gulf Oil Corporation); Insco 
Limited; Iranian Oil Participants Limited; Iranian Oil Services 
(Holdings) Limited; Java Gulf Limited; Keydril Company; Keydril 
Limited; Keydril U.S.A. (A Division of Gulf Oil Corporation)

Key International Drilling Company Limited; Korea 
Gulf Oil Company; Korea Lubricants Company, Ltd.; Korea Oil 
Corporation; Kupan Emirates Company Limited; Kupan Financial 
Company (Rotterdam B.V.; Kupan International Company; Kuwait



Oil Company Limited; Kuwait Oil Company Trustees Limited;
Laurel Pipe Line Company; Lost Hills Water Company; Mainline 
Pipelines Limited; Meme Grande Oil Company; Michigan Stations 
(A Division of Bulk Petroleum Corporation); Michigan Stations- 
Personnel Services (A Division of Bulk Petroleum Corporation); 
Midcaribbean Investments Limited; Mozambique Gulf Oil Company; 
National Butane Company; Nedgulf Tankers B.V.; A/S Nordisk 
Flaskegas; A/S Nordisk Flaskegas Holding Co.; Nordisk Gulf- 
Gas A/S; Norsk Gulf A/S; Northeast Stations & Services, Inc.; 
Norwegian Gulf Oil Production Company; Okan Pipeline Company; 
Okinawa Sekiyu Seisei Company, Ltd.; B. V. Olie Handelsvereeniging 
(Oil Trading Association); Pacific Gulf Oil Limited; Pennsylvania 
Oljeimport Aktiebolag; Petroleo Gulf do Erasil Limitada.

Petroleos Gulf de Guatemala, S.A.; Petroleos Gulf 
del Ecuador C.A.; Petroleum Products Storage and Transport 
Company S.A.; Petrosil Oil Company Limited; Pittsburg &
Midway Coal Mining Company, The; Productos Latinoamericanos,
S.A.; Propet Company, Limited; Refineria de Petroleos del 
Norte S .A. (Petronor); SARNI, S.p.A.; Shawinigan Products 
Corporation; Sociedad Anonima Espanola de Lubrificantes 
(SAFL); SOLVO Finance and Investment Corporation Ltd.;
South Pacific Gulf Oil Company; Spanish Gulf Oil Company;
Spencer Quimica Mexicana, S.A. de C.V.; Sunrise International 
Company, Limited; Svenska Aktiebolaget Alfred Olsen & Co.;
Svenska Gulf Oil A3; Taiwan VCM Industries Corporation;
Transocean Chemicals Company; Transocean Chemicals Company 
(Hong Kong) Limited; Transocean Gulf Oil Company; Transport 
Oil Company-Madison (A Division of Bulk Petroleum Corporation); 
Transport Oil Company-Milwaukee (A Division of Bulk Petroleum 
Corporation); United Petroleum Securities Corporation; Venezuela 
Gulf Refining Company; Venture Acceptance Corporation; Venture 
Out in America, Inc.; Veritas Oil Company Aktiebolag; Warren 
Petroleum Company (A Division of Gulf Oil Corporation); West 
Texas Gulf Pipeline Company; and Zaire Gulf Oil Company.

Patrick 0. Patterson 
Attorney of record for

Plaintiffs-Appellants



STATEMENT REQUIRED BY LOCAL RULE 16.2.2

I express a belief, based on a reasoned and studied 

professional judgment, that Part IV of the panel decision is 

contrary to the following decisions of the Supreme Court of 

the United States, and that consideration by the full Court 

is necessary to secure and maintain uniformity of decisions 

in this Court;

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

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

I express a belief, based on a reasoned and studied 

professional judgment, that this appeal involves one or more 

questions of exceptional importance; whether the district 

court misused its discretion, exceeded its authority, and 

violated the First and Fifth Amendments by restricting 

communications by plaintiffs and their counsel with class 

members in accordance with recommendations of the Manual for

PATRICK 0. PATTERSON

Attorney of Record for 
Plaintiffs-Appellants

Complex Litigation.



TABLE OF CONTENTS

Page

Issues for En Banc Consideration .....................  1

Course of Proceedings and
Disposition of the Case ...........................  1

Statement of Facts .................................... 3

Argument

I. The majority has decided important 
questions of constitutional law and 
class action administration in a 
manner which conflicts with decisions 
of the Supreme Court and the Third
Circuit ...................................  6

II. The district court's orders restraining 
communications by plaintiffs and their 
counsel with class members are overbroad 
abridgments of the freedoms of speech
and association ............................  10

A. Neither the record in this case 
nor the Manual for Complex Litiga­
tion provides any justification for 
the denial of First Amendment rights 
to the plaintiffs, their counsel, and
the class members in this litigation... 10

B. The panel majority's strained 
reading of the district court's 
June 22 order does not cure the
constitutional defect .................  11

III. The orders are discriminatory regulations 
of expression and association which con­
stitute an abuse of discretion and a 
denial of equal protection and due
process .....................................  13

-vii-



Page

IV. The orders constitute a misuse of 
the district court's discretion, 
they are inconsistent with the 
Federal Rules of Civil Procedure, 
and they exceed the power of the
court .......................................  14

Conclusion ............................................  15

Appendix A: Slip Opinion in Bernard v. Gulf Oil Co., 
No. 77-1502 (5th Cir., June 15, 1979).

-viii-



TABLE OF CITATIONS

CASES Page

Buckley v. Valeo, 424 U.S. 1 (1976) ................ 12

Coles v. Marsh, 560 F.2d 186 (3rd Cir.), 
cert, denied sub nom. Blue Cross v.
Marsh, 434 U.S. 985 (1977) ......................  9, 14

In re Primus, 436 U.S. 412 (1978) ..................  8, 12

Miller v. Amusement Enterprises, Inc.,
426 F . 2d 534 (5th Cir. 1970) ....................  8

NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958) ............................ 12

NAACP v. Button, 371 U.S. 415 (1963) ............... 7, 8, 12

Railroad Trainmen v. Virginia ex rel.
State Bar, 377 U.S. 1 (1964) ....................  8

Rodgers v. United States Steel Corp.,
508 F .2d 152 (3rd Cir.), cert, denied,
423 U.S. 832 (1975) .............................. 9, 14

Rodgers v. United States Steel Corp.,
536 F.2d 1001 (3rd Cir. 1976) ...................  9

United Mine Workers v. Illinois State
Bar Ass'n, 389 U.S. 217 (1967)   8

United Transportation Union v. State
Bar of Michigan, 401 U.S. 576 (1971) ............ 8

CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES

United States Constitution, First
Amendment ........................................  3, 6, 7, 3,

10, 11, 12

United States Constitution, Fifth Amendment ........  6, 13

28 U.S.C. § 1291 ....................................  2

-ix-



Page

28 U.S.C. § 1343 (4) ................................. 2

42 U.S.C. § 1981, Civil Rights Act
of 1866 ..........................................  1

42 U.S.C. § 2000e et seq., Title VII of the
Civil Rights Act of 1964, as amended ............ 1, 2

Rule 23, Fed.R.Civ.P............................  2-3, 9, 11, 14

Rule 83, Fed. R. Civ. P ................................. 9, 14

Local Rules: N.D. Fla. Rule 17(B), (C) ;
M. D. Fla. Rule 4.04(e); S.D. Fla. Rule 1 (B);
N. D. Ga. Rule 221.2, 221.3; E.D. La. Rule 
2.12(e); S.D. Tex. Rule 6; D. Md. Rule 20;.
S.D. Ohio Rule 3.94; M.D. Tenn. Rule 14(h),
(c); N.D. 111. Rule 22; W.D. Wash. Rule
23(g) ............................................  7

OTHER AUTHORITIES

88 Harv. L. Rev. 1911 (1975) .......................  13

Manual for Complex Litigation § 1.41,
1 Pt. 2 Moore's Federal practice
(2d ed. 1978) (Supp. 1978) ......................  7, 11, 13

Seymour, The Use of "Proof of Claim"
Forms and Gag Orders in Employment 
Discrimination Class Actions, 10 Conn.
L. Rev. 920 (1978) ............................... 7

-x-



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 77-1502

WESLEY P. BERNARD, et al.,

Plaintiffs-Appellants,

vs.

GULF OIL COMPANY, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District of Texas

PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING EN BANC



ISSUES FOR EN BANC CONSIDERATION

1. Did the district court's orders restraining 

communications with class members violate the First Amend­

ment rights of plaintiffs, plaintiffs' counsel, and the 

members of the class to engage in collective activity to 

obtain a judicial remedy for racial discrimination?

2. Were the orders restraining communications 

so discriminatory in their regulation of expression and 

association that they constituted an abuse of discretion or 

a denial of due process and equal protection of the laws in 

violation of the Fifth Amendment?

3. Did the district court misuse its discretion 

or exceed its authority under Rules 23 and 83, Fed. R. Civ. 

p., by entering the orders restraining communications?

COURSE OF PROCEEDINGS AND DISPOSITION
____________ OF THE CASE______________

Plaintiffs-appellants in this case are black present 

or retired employees of defendant Gulf Oil Company who charge 

that they and all other similarly situated black persons are 

the victims of systematic past, present, and continuing racial 

discrimination in employment by Gulf and the defendant unions, 

in violation of Title VII of the Civil Rights Act of 1964, as 

amended, 42 U.S.C. § 2000e et sea., and the Civil Rights Act 

of 1866, 42 U.S.C. § 1981. jurisdiction in the district court



was predicated on 28 U.S.C. § 1343(4) and 42 U.S.C.§ 2000e-5(f).

The district court entered orders restraining communications by
1/

the named parties and their counsel with class members and 

granted summary judgment for defendants.

Plaintiffs appealed, asserting jurisdiction in this

Court based upon 28 U.S.C. § 1291. The panel, composed of
’ 2/

Judges Thornberry, Godbold, and Hill, held unanimously that 

plaintiffs' Title VII claims were timely filed, that their 

§ 1981 claims were not barred by the applicable Texas statute 

of limitations, and that none of their claims was barred by 

the doctrine of laches. Accordingly, the panel reversed the 

district court’s judgment and remanded the case for further 

proceedings.

But Judges Thornberry and Hill, in Part IV of their 

opinion, upheld the validity of the district court's restric­

tions on communications with class members. Judge Godbold 

dissented from this part of the majority opinion. He concluded 

that the restraints imposed in this case contravened Rule 23,

1/ The district court entered three orders prohibiting or re­
stricting such communications: on May 28 (A. 30-31), June 22 
(A. 56-61), and August 10, 1976 (A. 157). Contrary to the 
statements in the majority opinion (slip op. at 5515, 5519), 
plaintiffs have challenged all of these orders on appeal. See 
Brief for Appellants at 2, 14, 39-40.

2/ Judge Hill specially concurred and filed a separate opinion.



Fed.R.Civ.P., and violated the First Amendment rights of the 

named plaintiffs, their counsel, and all actual or potential 

class members.

Plaintiffs seek rehearing and suggest rehearing 

en banc of the questions addressed in Part IV of the majority 

opinion and in Judge Godbold's dissenting opinion.

STATEMENT OF FACTS

The facts pertinent to plaintiffs' petition for re­

hearing and suggestion of rehearing en banc are not disputed 

by either the majority or the defendants. Those facts are 

fully stated in Part I of Judge Godbold's dissenting opinion 

(see Appendix A hereto), and they are summarized below.

On April 14, 1976, Gulf entered into a conciliation 

agreement with the EEOC and the Office for Equal Opportunity 

of the Department of the Interior concerning alleged racial 

discrimination by Gulf against black employees at its refinery 

at port Arthur, Texas (A. 15-28). The agreement was not subject 

to judicial review or approval, and neither the union defendants 

in this case nor the named plaintiffs or any members of their 

class were parties to the agreement (A. 26-28).

Approximately two weeks later, Gulf began tendering 

"back pay awards" to persons identified as "affected class 

members" under the agreement (A. 18-20), and soliciting releases

-3-



and unethical conduct (R. 17-18), District Judge Stager entered 

an order prohibiting all communications by the parties or their 

counsel with any actual or potential class member who was not 

a formal party to the action, pending Chief Judge Fisher's 

return (A. 30-31). No evidence was presented to Judge Steger, 

and he made no findings.

On June 8, Gulf filed an unverified motion to modify 

the order of May 28 and made further unsworn allegations of 

misconduct (R. 24), which counsel for plaintiffs denied under 

oath (A. 51). On June 22, without requiring Gulf to prove 

any of its charges of improper and unethical conduct, and 

without making any findings of fact, judge Fisher modified 

the order to prohibit all communications with actual or poten­

tial class members concerning the case except those made with 

the court's prior approval of both the communication and the 

proposed addressees. The modified order also permitted cer­

tain communications initiated by a client or prospective 

client; it allowed certain communications occurring in the regular 

course of business; it required that any constitutionally 

protected communication be filed with the court within five 

days after its occurrence; and it permitted Gulf to renew 

its tenders of "back pay awards" under its conciliation agree­

ment and to solicit releases from the class members through 

the clerk of the district court (A. 56-61). The modified

-5-



order further stated that class members had 45 days from the date 

of the clerk's notice to accept the offer and that all who delivered 

receipts and releases to Gulf within 35 days would be deemed to 

have accepted (A. 58).

On July 6, plaintiffs moved for permission to distribute

a notice to the class members regarding the conciliation agreement
1/

and releases, and for permission to discuss these subjects with 

the class members within the 45 day period allowed for their con­

sideration of Gulf's offer (A. 62-65). This period expired on or 

about August 8. The district court did not act on plaintiffs' 

motion until August 10, when it entered a one-sentence order 

denying the motion without explanation (A. 157).

ARGUMENT

I. THE MAJORITY HAS DECIDED IMPORTANT QUESTIONS OF CONSTITUTIONAL 
LAW AND CLASS ACTION ADMINISTRATION IN A MANNER WHICH CONFLICTS 
WITH DECISIONS OF THE SUPREME COURT AND THE THIRD CIRCUIT.

This petition presents the question whether the district

court misused its discretion, exceeded its authority, and violated

the First and Fifth Amendments by restricting communications by

plaintiffs and their counsel with class members. As judge Godbold

stated,

The issue is important. The critical part of 
the order in question follows the form suggested in 
the Manual for Complex Litigation .... This case 
presents in this circuit for the first time the va­
lidity of such an order. Another circuit has taken 
a position contrary to the majority's decision. Slip 
op. at 5520 (footnotes omitted).

3/ The proposed notice is reprinted in Judge Godbold's opinion 
at 5524 (Appendix A hereto).

- 6-



The entry of the orders restraining communications in 

this case was not an isolated or unusual occurrence. Section
4/

1.41 of the Manual for Complex Litigation recommends that such
5/ 6/

restraints be imposed by local rule or by a pretrial order in 

every class action brought in federal court. At least 11 district 

courts, six of which are in this circuit, have adopted such local
V 8/

rules, and many district judges have entered similar orders.

These restraints deprive plaintiffs, their attorneys, 

and class members of their fundamental right to engage in col­

lective activity to obtain meaningful access to the courts. The 

district court's orders in this case placedunjustified prior re­

straints on the exercise of First Amendment rights. The orders 

also violated the First Amendment by unnecessarily restricting 

"constitutionally privileged means of expression to secure con­

stitutionally guaranteed civil rights." NAACP v. Button, 371 

U.S. 415, 442-43 (1963).

4/ 1 Pt. 2 Moore's Federal Practice at 31-37 (2d ed. 1978), 3-4
(Supp. 1978).
5/ Id. at 225-26.
6/ Id. at 226-30.
7/ N.D. Fla. Local Rule 17(B), (C); M.D. Fla. Local Rule 4.04(e) 
S.D. Fla. Local Rule 19(B); N.D. Ga. Local Rule 221.2, 221.3; E.D. 
La. Local Rule 2.12(e); S.D. Tex. Local Rule 6; D. Md. Local Rule 
20; S.D. Ohio Local Rule 3.94; M.D. Tenn. Local Rule 14(b), (c);
N.D. 111. Local Rule 22; W.D. Wash. Local Rule 23(g). The rule 
adopted in the Southern District of Texas may not suffer from the 
same constitutional infirmities as the rule recommended by the 
Manual. See slip op. at 5534 (Godbold, J., dissenting in part).

8/ See Seymour, The Use of "Proof of Claim" Forms and Gag Orders 
in Employment Discrimination Class Actions, 10 Conn. L. Rev. 920, 
937-43 (1978) .

-7-



The plaintiffs in this case are represented by lawyers 

affiliated with the NAACP Legal Defense and Educational Fund,

Inc. —  the same organization whose activities in promoting and 

conducting litigation against racial discrimination were held to 

be constitutionally protected forms of expression and association
i/

in Button. In the most recent of a long line of cases reaffirming
10/

and expanding the principles of Button, the Supreme Court held once 

again that the First Amendment protects the conduct of attorneys 

associated with such organizations as the Legal Defense Fund and 

the ACLU in advising people of their rights and engaging in liti­

gation as a vehicle for political expression and association. In 

re Primus, 436 U.S. 412, 426-32 (1978). These rights may not be 

limited except upon a showing that there is "1 a subordinating 

interest which is compelling' ... and that the means employed in 

furtherance of that interest are 'closely drawn to avoid unneces­

sary abridgment of associational freedoms.'" Id. at 432 (citations 

omitted). The majority's decision in the case at bar mentions

9/ "The counsel silenced without factual showing include those 
from the Legal Defense Fund, recognized by the Supreme Court as 
having 'a corporate reputation for expertness in presenting and 
arguing the difficult questions of law that frequently arise in 
civil rights litigation,' NAACP v. Button, 371 U.S. 415 at 422 
..., and engaged in 'a different matter from the oppressive, 
malicious or avaricious use of the legal process for purely private 
gain.' Id. at 443 ...." Slip op. at 5529(Godbold, j., dissenting 
in part). See also, Miller v. Amusement Enterprises, Inc., 426 
F .2d 534, 539 n.4 (5th Cir. 1970).
10/ In re Primus, 436 U.S. 412 (1978); 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); Railroad Train­
men v. Virginia ex ral State Bar, 377 U.S. 1 (1964).

- 8-



none of these cases; it ignores the requirements of the Consti­

tution.

The majority's decision also conflicts with decisions 

of the Third Circuit. The district court's orders in this case 

deprived the class members of the advice and assistance of Legal 

Defense Fund counsel at a time when the defendant was making 

settlement offers to the class members and soliciting waivers of 

their civil rights "under the official imprimatur of the court. " 

Slip op. at 5529 (Godbold, J., dissenting in part). The Third 

Circuit held in similar circumstances that an order forbidding 

LDF counsel to communicate with class members concerning certain 

aspects of a settlement offer was an unconstitutional prior re­

straint on freedom of speech. Rodgers v. United States Steel 

Coro,t 536 F .2d 1001 (3rd Cir. 1976). In another case, the Third 

Circuit reversed an order which was virtually identical to the 

June 22 order in the instant case (slip op. at 5515-16 n.9); the 

court held that such orders conflicted with the purposes of Rule 

23 and therefore exceeded the power of the district court under 

Rules 23(d) and 83, Fed.R.Civ.P. Coles v. Marsh, 560 F.2d 186 

(3rd Cir.), cert, denied sub nom. Blue Cross v. Marsh, 434 U.S.

985 (1977). Cf. Rodgers v. United States Steel Corp., 508 F.2d 

152 (3rd Cir.), cert, denied, 423 U.S. 832 (1975).

Plaintiffs respectfully submit that the panel majority's 

decision does not give adequate consideration to the constitutional 

values at stake in this case or to the conflicting decisions of

-9-



the Supreme Court and the Third Circuit, we request rehearing 

and suggest that rehearing en banc is appropriate in view of the 

importance of the issues and the impact of this Court's decision 

on the administration of class actions.

II. THE DISTRICT COURT'S ORDERS RESTRAINING COMMUNICATIONS 
BY PLAINTIFFS AND THEIR COUNSEL WITH CLASS MEMBERS ARE 
OVERBROAD ABRIDGMENTS OF THE FREEDOMS OF SPEECH AND 
ASSOCIATION.

Part III of Judge Godbold's dissenting opinion demon­

strates that the orders restraining communications violated the 

First Amendment rights of the named plaintiffs, their counsel, 

and all actual and potential members of the class. Plaintiffs 

wish to emphasize only two additional points.

A. Neither the Record in this Case nor the Manual 
for Complex Litigation Provides anv Justifica­
tion for the Denial of First Amendment Rights 
to the Plaintiffs, their Counsel, and the Class 
Members in this Litigation.

The record in this case contains absolutely no evidence, 

and the district court made no findings, that plaintiffs or their 

counsel either had engaged or were ever likely to engage in any 

improper or unethical conduct, or that they posed any threat 

whatever to the administration of justice. See slip op. at 5526 

and n.9 (Godbold, J., dissenting in part). The majority concedes 

that its decision upholding the district court's orders is not 

based upon any such showing, slip op. at 5518 n.14; rather, it 

finds the justification for these restrictions in the four "potential

- 10-



abuses" of the class action device set forth in the Manual for

Complex Litigation, 1 Pt. 2 Moore's Federal Practice at 31-32.
11/

Only one of these potential abuses is arguably relevant here: 

communications "which may misrepresent the status, purposes and 

effects of the action and of court orders therein and which may 

confuse ... class members and create impressions which may re­

flect adversely on the court or the administration of justice."

1 pt. 2 Moore's Federal practice at 31-32. However, the cases 

cited to document this alleged abuse do not disclose a single 

instance of proven misconduct by class representatives or their

counsel which could have been prevented by the suggested local
12/

rule or by the orders entered by the court below. The unsub­

stantiated fear of possible misconduct in some cases is not suf­

ficient to justify the denial of First Amendment rights in this 

case.

B . The Panel Majority's Strained Reading of the 
District Court's June 22 Order Does Not Cure 
the Constitutional Defect.

The majority attempts to avoid the First Amendment

issue by construing the June 22 order as follows:

11/ The other alleged abuses —  solicitation of legal representa­
tion, solicitation of fees and expenses, and solicitation of opt- 
out requests from class members in actions under Rule 23 (b) (3) , 
Fed.R.Civ. P. —  have no application to this case. See slip op. 
at 5532-33 n.18 (Godbold, J., dissenting); cf. id.at 5518 n.12 
(Thornberry and Hill, JJ.).

12/ These cases are cited in the Manual at nn. 34-42.

- 11-



[E]ven if the prohibitions of the order are 
vague or overbroad, the parties can avoid them 
if they assert a good faith belief that a par­
ticular communication is constitutionally pro­
tected. Slip op. at 5519.

13/
The majority's construction of the order is no substi­

tute for an order which is "closely drawn to avoid unnecessary 

abridgment of associational freedoms." In re Primus, supra, 436 

U.S. at 432, quoting Buckley v. Valeo, 424 U.S. 1, 25 (1976).

Overbroad restrictions on First Amendment freedoms cannot be saved 

by resolving ambiguities in favor of a constitutionally acceptable 

reading. NAACP v. Button, supra, 371 U.S. at 432.

Moreover, the majority's construction does nothing to 

change the requirement that parties and lawyers exercising their 

constitutional rights must file a copy of every written communica­

tion and a summary of every oral communication with the court within 

five days, nor does it protect the confidentiality of communications 

between class members and counsel for the class. "[C]ompelled dis­

closure of affiliation with groups engaged in advocacy may consti­

tute [an] effective ... restraint on freedom of association ...." 

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).

13/ The text of the provision on which the majority relies (52,
A. 57) states as follows:

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

- 12-



The majority's reading of the June 22 order also subjects 

plaintiffs and their counsel to the continuing risk that they will 

be held in violation of the order if they cannot establish their 

good faith to the district court's satisfaction. Thus, even as 

construed by the majority here, the proviso for constitutionally 

privileged communications "does not eliminate —  indeed it high­

lights —  the overbreadth and resultant chilling effect of the 

fManual's] proposed rule." 88 Harv. L. Rev. 1911, 1922 n.74 (1975)

III. THE ORDERS ARE DISCRIMINATORY REGULATIONS OF EXPRESSION 
AND ASSOCIATION WHICH CONSTITUTE AN ABUSE OF DISCRETION 
AND A DENIAL OF EQUAL PROTECTION AND DUE PROCESS.

judge Godbold concludes that the district court's limit­

ation on communications "was intended to further employees' accept­

ing conciliation awards in preference to participating in the suit, 

slip op. at 5528, and that it "inappropriately involved the court 

in the extra-judicial conciliation effort," id. at 5529. Plain­

tiffs submit that these restrictions were so unfair and one-sided 

that they also violated the Fifth Amendment.

The effect of the June order was to make the court into 

an instrument cf the Gulf Oil Corporation for the purpose of offer­

ing back pay settlements to and soliciting releases from class 

members (55 3-9, A. 57-61). Plaintiffs and their counsel, on the 

other hand, requested and were specifically denied permission to 

discuss these matters with the members of the class (A. 62-65, 157)

in addition, the order allows certain "communications occurring in 
the regular course of business ..." (52, A. 57). Thrs exception

-13-



clearly favors the employer, who has far greater day-to-day access 

to employees; it is open to widespread and unpoliceable abuse in 

the context of the employer-employee relationship. Moreover, the 

order effectively shuts off communications by plaintiffs and their 

counsel with class members who have knowledge of the facts and 

whose experience and assistance are necessary in framing litiga­

tion and settlement strategy. There is no corresponding restraint 

on defendants' counsel, who are free to consult with management and 

supervisory employees to develop the facts, interview witnesses, 

prepare for trial, and discuss strategy without any restrictions 

whatever.

IV. THE ORDERS CONSTITUTE A MISUSE OF THE DISTRICT COURT'S
DISCRETION, THEY ARE INCONSISTENT WITH THE FEDERAL RULES 
OF CIVIL PROCEDURE, AND THEY EXCEED THE POWER OF THE 
COURT.

Part II of Judge Godbold's dissenting opinion demon­

strates that the district court misused its discretion in enter­

ing the orders restricting communications by plaintiffs and their 

counsel with class members. Plaintiffs submit that the orders 

also were inconsistent with the purposes of Rule 23 and therefore 

were beyond the district court's power under either Rule 23(d) or 

Rule 83, Fed.R.Civ. P. Coles v. Marsh, 560 F.2d 186 (3rd Cir.), 

cert, denied sub nom. Blue Cross v. Marsh, 434 U.S. 985 (1977);

Rodgers v. United States Steel Coro., 508 F .2d 152 (3rd Cir.), 

cert, denied, 423 U.S. 832 (1975).

-14-



CONCLUSION

For the reasons stated above, plaintiffs-appellants 

request rehearing and suggest rehearing en banc of the issues 

decided in Part IV of the panel majority’s opinion. We urge 

the Court to decide these issues in accordance with Judge 

Godbold's dissenting opinion and to vacate the district court's 

orders restricting communications by plaintiffs and their counsel 

with the members of the class.

Respectfully submitted,

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

ULYSSES GENE THIBODEAUX 
425 Alamo Street 
Lake Charles, Louisiana 70601

CHARLES E. COTTON
Suite 500 - 348 Baronne Street 
New Orleans, Louisiana 70601

BARRY L. GOLDSTEIN
806 15th Street, N.W.
Washington, D.C. 20006

JACK GREENBERG 
PATRICK 0. PATTERSON 

10 Columbus Circle 
New York, New York 10019

Attorneys for plaintiffs-Appellants

-15-



APPENDIX A

Slip Opinion in Bernard v. Gulf 
Oil Co., No. 77-1502 (5th Cir., 
June 15, 1979)



BERNARD v. GULF OIL CO. 5505

Wesley P. BERNARD et al..
Plain tiffs-A ppellan ts,

v.

GULF O IL COMPANY et al..
D efendants-A ppellees.

No. 77-1502.

United S tates Court of Appeals, 
F ifth  Circuit.

June 15. 1979.

Em ploym ent discrim ination suit was 
brought against em ployer and unions 
based on allegation th a t the employer 
and the unions had discrim inated against 
plaintiffs and sim ilarly situated  black 
employees in violation of T itle VII and 
of the Civil Rights Act of 1866. The 
United S tates District Court for the 
E astern  D istrict o f Texas, Joe J. Fisher, 
Chief Judge, entered an order prohibit­
ing the parties from com m unicating with 
class mumliers w itnout court approval 
and la ter gran ted  defendants ' motions 
for sum m ary judgm ent. P lain tiffs ap­
pealed, and the Court of Apjieals, Thom - 
berrv, Circuit Judge, held tha t: (1) the 
90-day period within which p laintiffs 
w ere required to file su it did not begin 
to run until plaintiffs received notice 
from the Equal Em ploym ent Opportuni­
ty  Commission both of the failure of con­
ciliation and of the EEOC’s decision not 
to sue: (2) defendants did not m eet their 
sum m ary judgm ent burden to establish 
the absence of any m aterial issue of 
fact: (3) under Ixith Texas and federal 
law, the date on which the s ta tu te  of 
lim itations began to run on p la in tiffs’ 
claim under the Civil Rights Act of 1866 
was the last date on which defendants 
unlawfully harmed plaintiffs: ( i)  plain­
tiffs  could recover dam ages for any

wrongful acts com m itted during  the lim­
itations |>eriod; (5) the s ta tu te  of lim ita­
tions did not totally bar the claim under 
the Civil Rights A«-i >.f lWfi; (f,) ;my 
recovery under the Civil Rights Act of 
1866 was limited to those violations oc­
curring  within a tw o-year jieriod imme­
diately preceding the filing of the com­
plaint or thereafte r; (7) p la in tiffs’ fail­
ure to file their Title VII claim until 
completion of the EEOC process was not 
inexcusable delay and did not support 
the application of laches to bar the 
claim; (8) the order restric ting  the par­
ties' communication with members of the 
putative class was a permissible exercise 
ol the district court's discretionary [low­
er to control a class action, and (9) the 
order did not violate p la in tiffs ' constitu­
tional rights.

Reversed and remanded.
God hold. Circuit Judge, concurred in 

p art and dissented in part and filed opin­
ion.

Jam es C. Hill, Circuit Judge, S|iecial- 
ly concurred and filed opinion.

1. Civil R igh ts <3=40
W here firs t le tte r which the Equal 

Em ploym ent O pportunity Commission 
sen t to em ploym ent discrimination com­
plainants sta ted  th a t conciliation efforts 
had failed and tha t com plainants could 
request a notice of righ t to sue le tte r but 
did not indicate that the EEOC had de­
cided not to sue and where the conclud­
ing paragraph  of the first le tte r  in effect 
assured com plainants th a t the 90-day [ie- 
riod for filing suit would not commence 
until com plainants received a second le t­
ter, the [leriod within which complain­
ants wore required to file su it did not 
begin to run until com plainants received 
notice of both the failure of conciliation 
and of the EEOC’s decision not to sue.

Syllabi anil Kv> N uihIh t  ‘ la-MKifiratioii 
r n p Y K k iH T  c by W KST m tl .I S I I I N < >  1*0

T h r  Synopsr*, Syllabi anil Kvv N nm lw r < la.'iMi fi­
xation  m n n li in i r  n«i purl of tho opinion o f tin* r»>iirt



5506 BERNARD v. G l T F OIL CO.

Civil Rights Act of 1964, § 706(f) as 
am ended 42 U.S.C.A. § 2000e-5( f)( 1).
2. F edera l Civil P rocedure c=>184

In em ployment discrim ination action 
based on claim tha t em ployer and unions 
had engaged in race discrim ination in vi­
olation of T itle VII, claims of class re|>- 
resentatives were pro|>erly liefore the 
court and. therefore, the d istric t court 
com m itted erro r in dism issing class 
claims. Civil Rights Act of 1964, § 701 
et seq. as amended 42 U.S.C.A. § 2000e 
et seq.; 42 U.S.C.A. § 1981.
3. F edera l Civil P rocedure 0=2544

U nder sum m ary judgm ent practice, 
the moving party  has the initial burden 
to establish th a t there is no genuine is­
sue of m aterial fact; unless and until 
the moving party  initially provides factu­
al support for the sum m ary judgm ent 
motion, the opposing party  has no duty 
to respond to the motion or to present 
opposing evidence. Fed.Rules Civ.Proc. 
rule 56, 2S U.S.C.A.
4. F ederal Civil P rocedure o=253!)

Where, though em ployer and unions 
presented many affidavits in support of 
the ir motion for sum m ary judgm en t in 
em ploym ent discrimination action, none 
of the affidavits contained a denial of 
p la in tiffs’ allegations concerning discrim­
ination against blacks, d istric t court’s 
ruling  th a t there were no instances of 
continuing discrimination was unsup­
ported by the sum m ary judgm en t recon 1. 
Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A.; 
42 U.S.C.A. § 1981.
5. Federal Civil P rocedure c=254 l

In em ployment discrim ination ac­
tion, employer and union defendants did 
not m eet their sum m ary judgm en t bur­
den to establish the absence of any ma­
terial issue of fact where, though plain­
tiffs asserted th a t defendants had discri­
m inated and continued to discrim inate

against blacks in em ployment, defend­
an ts presented no affidavits denying 
th a t they' were discrim inating against 
blacks. 42 U.S.C.A. 6 1981; Fed.Rules 
Civ.Proc. rule 56, 28 U.S.C.A.

6. Civil R ights <=» 13.10
Under !x>th Texas and federal law, 

the date on which s ta tu te  of lim itations 
l>egan to run on em ploym ent discrim ina­
tion claim under the Civil Rights Act of 
1866 was the last date on which defend­
an ts unlaw fully harmed com plainants. 
42 U.S.C.A. § 1981.

7. Civil R ights c =  13.17
Em ploym ent discrim ination com­

plainants could recover dam ages for any 
wrongful acts com mitted by em ployer 
and union defendants within the applica­
ble lim itations period. 42 U.S.C.A. 
§ 1981.

8. L im itation  of Actions o = 5 5 (l)
Texas rule, j>ecuiinr to trespass 

cases, th a t the s ta tu te  of lim itations lie- 
gins to run on the date when the tres­
passers f irs t entered  the land, even if 
they continue to use the land a f te r  th a t 
date, is inapplicable when defendants 
continue to violate p la in tiffs’ rights with 
new and distinct actions.

9. Civil R igh ts «=» 13.10
U nder Texas law, em ploym ent dis­

crim ination com plainants’ cause of action 
for alleged violations of the Civil Rights 
A et of 1866 and any recovery they might 
receive was limited to those violations 
which occurred within the two-year peri­
od im m ediately preceding the filing of 
the com plaint or thereafte r. 42 U.S.C.A. 
§ 1981.

10. Equity  «=72(1)
For application of laches to lie prop­

er. court must find Ixith tha t p la in tiff 
delayed inexcusably in bringing suit and



BERNARD < GULF OIL CO. 5507

th a t this delay unduly prejudiced defend­
ants.

11. Civil R ights <3=>3]
The private remedy allowed by the 

Civil Rights Act of 1964 is only an a lte r­
native method for a p la in tiff to ohtain 
relief from  em ploym ent discrimination; 
therefore, a com plainant cannot lie f i ­
nalized for choosing to forego this a lte r­
native and to elect instead the legisla­
tively and judicially favored method of 
relying on adm inistrative processes of 
the Equal Em ploym ent O pportunity 
Commission. Civil Rights Act of 1964, 
§ 706(e) as am ended 12 L'.S C A
§ 2000e-5( f)( 1).
12. Civil R ights o = (0

Failure of race discrim ination com­
plainants to file the ir T itle VII claim 
until completion of Equal Employment 
O pportunity  Commission adm inistrative 
process was not inexcusable delay and 
could not supfiort application of laches to 
bar the claim. Civil Rights Act of 1964, 
§ 701 et seq. as am ended 42 U.S.C.A. 
§ 2000e e t seq.
13. Civil R igh ts c =  13.10

The Texas s ta tu te  of lim itations pre­
vented race discianiination com plainants 
from asserting  claims under the Civil 
R ights Act of 1866 which arose more 
than two years Ixjfore the com plaint was 
filed; therefore, any delay which oc­
curred before the tw o-year jx*riod was 
irrelevant to com plainants’ claims under 
the Act. 42 U.S.C.A. § 1981; Vernon’s 
Ann.Tex.Civ.St. art. 5526.
14. Civil R ights c =  13.10

Allegations of corporate employer 
th a t it had made several personnel 
changes since the date when race dis­
crim ination com plainants alleged tha t vi­
olations began and th a t a numlicr oC 
m anagem ent personnel had retired and 
two [lersonnel m anagers had died were

insufficient grounds on which to b;ise a 
finding of prejudice arising from com­
plainants’ assorted undue delay in filing 
em ploym ent discrim ination suit lu I :„s 
C.A. § 1981.

15. Civil R ights 13.lt)
Unless the employees are unavaila­

ble, the fact th a t fiersonnel changes have 
occurred or th a t employees have retired 
since alleged em ployment discrimination 
violations occurred is irrelevant to d e te r­
mining w hether laches can lie invoked to 
liar claims. 42 U.S.C.A. § 1981.

16. Civil R ights c= 40
W here employer did not destroy doc­

um ents relevant to em ploym ent discrimi­
nation claims until two years a f te r  the 
em ployer learned of the charges and 
where the destruction of the records, 
which related to personnel decisions 
made during a certain  period, provided 
the basis for the em ployer's assertion 
th a t it was unduly prejudiced in its de­
fense by com plainants’ delay in filing 
suit because two form er [lersonnel m ana­
gers having irreplaceable knowledge of 
the facts had died, em ployer’s assertions 
did not w arran t invoking the defense of 
laches to liar em ployment discrim ination 
claim.

17. Equity <3=73
A party  cannot assert the defense of 

laches merely liecau.se it failed to pre­
serve evidence despite knowledge of a 
[lending claim.

18. Federal Civil P rocedure 3=184
Where circum stances were such th a t

district judge could easily have concluded 
th a t his du ty  to control civil rights class 
action outweighed any in terest p la in tiffs’ 
atto rney  m ight have in com m unicating 
with memtiers of the putative class w ith­
out prior approval of the court, order 
restric ting  the parties’ communication



5503 BERNARD v. ' ULF OIL CO.

w ith memhers of the pu ta tive class was 
a permissible exercise of the d istrict 
court’s discretionary power to control a 
class action. 42 U.S.C.A. § 1981: Fed. 
Rules Civ.Proc. rule 23. 28 U.S.C.A.
19. Federal Civil P rocedure 0=161, 164.

1699
The class action rule imjxisos on tin- 

trial judge the duty to assure tha t a 
class action is an appropriate way to re­
solve the controversy, th a t represen ta­
tive parties will fairly and adequately 
protect the interests of the class, th a t 
the pleading and trial of the case are 
conducted fairly and efficiently  and that 
any settlem ent or compromise is not un­
favorable to the class. Fed.Rid- s Civ. 
Proc. rules 23, 23(d), 28 U.S.C.A.
20. Federal Civil P rocedure c = |( j l

Because any communication between
parties and class members might mislead 
class members by appearing  to reflect 
the opinion of the court ra th e r than th a l 
of the party  making the communication, 
trial court should have the power to ex­
am ine such communications in order to 
assure th a t class members will not be 
misled. Fed. Rules Civ.Proc. rules 23, 
23(d), 28 U.S.C.A.
21. Federal Civil P rocedure 0=1271

In enforcing order restric ting  com­
munication between parties and putative 
class members, district court should 
refuse to allow only those a ttem pts a t 
discovery th a t would clearly have an ad­
verse effect on the fairness of efficiency 
of the litigation. Fed.Rules Civ.Proc. 
rules 23, 23(d), 23 U.S.C.A.
22. Federal Civil P rocedure c =  161

Though the class action rule implic­
itly provides plaintiffs w ith the right to 
encourage common participation in liti­
gation of class claim, the rule’s explicit 
g ra n t of authority  to the trial court to 
control the conduct and se ttlem en t of 
the action outweighs p la in tiffs’ in terest

in unrestrained communications with pu­
tative c 1 ass memlx'rs. Fed.Rules Civ. 
Proc. rules 23, 23(d), 28 U.S.C.A.
23. F ederal Civil P rocedure 0=161 

A lthough there nun i-- n il.:, , 
oils of achieving sim ilar results, the class 
action rule does not prohibit a trial 
court’s discretionary use of an order re­
quiring prior approval of parties’ com­
munications with class members. Fed. 
Rules Civ.Proc. rules 23, 23(d), 2S U.S. 
C.A.
21. Federal Civil P rocedure c = lH l

In civil rights class action, district 
court had power to restric t communica­
tions between parties and pu ta tive class 
memtiers without regard to any allega­
tions of unothiral conduct; requiring the 
district court to find s|>eeific evidence of 
dangers of abuse and irreparable harm 
in a particu lar case before acting  would 
severely ham p ir the court’s ability to 
control the case. Fed.Rules Civ.Proc. 
rules 23, 23(d). 2S U.S.C.A.
25. C onstitu tional Law 0=90.1(3)

Order, entered by d istric t court in
civil rights class action, which restricted 
communications lietwoeii parties and pu­
tative class meml>ers was not an uncon­
stitu tional prior restra in t on p la in tiffs’ 
communication with class. Fed.Rules 
Civ.Proc. rules 23, 23(d), 28 U.S.C.A.; 
LLS.C.A.Const. Amend. 1.
26. F ederal C ourts c=H17

Even though it is [Hirmissible for the 
d istrict court to prohibit unapproved 
communications l>etween parties and pu­
ta tive  class memixirs, the trial judge 's 
separate decisions approving or disap­
proving particular communications are 
normally a proper subject for appellate 
review. Fed.Rules Civ.Proc. rules 23, 
23(d), 28 U.S.C.A.
27. C onstitu tional Ijlw 0=90.1(3)

Order, entered in civil rights class
action, which prohibited parties from



BERNARD v. GULF OIL CO. 5509

communicating- with pu ta tive class mem­
bers w ithout prior approval of the court 
adequately safeguarded the F irst 
A m endm ent rights of the parties and 
counsel where, even if prohibitions of the 
order were vague or overbroad, the par­
ties could avoid them if they assorted a 
good faith belief th a t a particu lar com­
munication was constitutionally protect­
ed. U.S.C.A.Const. Amend. I.

2S. C onstitu tional Law c=>21!)(1)
W here the d istrict cou rt’s o rder pro­

hibiting communications between parties 
and pu ta tive class .members w ithout pri­
or approval of the court prohibited de- 
icndan ts as well as p lain tiffs from con­
tacting  class members regard ing  back 
pay settlem ent and where the provision 
allow ing communication w ith class mem­
bers in the regular course of business 
applied equally to all parties and counsel, 
not merely to defendants, o rder did not 
violate plainLiffs’ right to equal protec­
tion by allowing defendants to offer 
back pay se ttlem en t to class members 
and to contact class memtiers in the ordi­
nary  course of business w ithout allowing 
sim ilar rights to plaintiffs. U.S.C.A. 
Const. Amends. 5, 14.

Appeal from the United S tates Dis­
tr ic t Court for the Eastern  D istrict of 
Texas.

1. B ernard also filed charges against the in ter­
national union in 1976, but the EEOC dis­
m issed th is charge as untim ely. A pparently, 
th is w as the only charge any of the plaintiffs 
filed against the in ternational union. Although 
these  facts may have som e relevance to the 
m erits of the action or scope of relief against 
th e  international union, the parties did not dis­
cuss that possibility before th is court. There* 
fore, although the d istrict court mav decide 
d ifferently  after further exam ination  on re­
m and, on th is appeal we wiil d iscuss the issues

Before THORNBERRY, GODBOLD 
and HILL, Circuit Judges.

THORNBERIUi. f'in-mi Judge:
PIaintiffs-ap|>ellanL.s in tills case are 

present o r retired employees of defend­
an t Gulf and claim th a t Gulf anil the 
defendant unions have discrim inated 
against p laintiffs and sim ilarly situated 
black employees in violation of Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. 
§ 2000c el  seq„ and Ihe Civil Rights Act 
of 1S66, 42 U.S.C. § 19S1. The d istrict 
court entered an order prohibiting the 
parties from com municating with class 
memliers and la ter g ran ted  defendants' 
motions for sum m ary judgm ent.

P laintiffs Bernard, Brown, and John­
son filed charges of discrimination with 
the EEOC in 1967 against Gulf and the 
local union.1 The EEOC served copies of 
the charge on defendants in A ugust, 
1967, and issued a finding of reasonable 
cause in August, 1968. The EEOC ac­
tively pursuer! conciliation effo rts with 
defendants until F ebruary, 1975, a t 
which tim e it sent plaintiffs a notice 
s ta tin g  th a t defendants did not wish to 
en tertain  conciliation discussions and ad­
vising plaintiffs tha t they could request 
a “ Notice of Right to Sue" le tte r  a t any 
time." The EEOC continued conciliation 
efforts on the basis of a Commissioner's

raised as if they were equally applicable to ail 
defendants.

2. These first letters stated:
On February 19. I97f>, the Equal Em ploy­
m ent O pportunity  Com m ission 's Houston 
D istrict Office received notice from  Gulf Oil 
C om pany— U.S. and Oil. Chemical and 
Atomic W orkers. In ternational Union Local 
4-23. the R espondents in the above cap ­
tioned m atter, that they do not wish to en ­
terta in  conciliation d iscussions to resolve 
those issues set out under the Com m ission s



5510

i

BERNARD v. ULF OIL CO.

charge filed in Septem ixjr 1967, which 
raised the same issues charged by plain­
tiffs. These efforts resulted in a concil­
iation agreem ent between the EEOC and 
Gulf in April, 1976. P lain tiffs filed this 
su it in May, 1976, and re<|uested the 
Right-to-Sue letters from the EEOC. 
The EEOC issued the le tte rs to Bernard 
and Brown in June,3 and plaintiffs 
am ended their com plaint to reflect this 
fact in Ju ly , 1976.

Soon a f te r  they filed the com plaint, 
p la in tiffs’ attorneys appeared a t a m eet­
ing of Gulf employees, during  which 
they discussed this case. As a result of 
this meeting, Gulf requested the court to 
en te r an order restric ting  the parties’ or 
counsels' communication with class mem­
bers. Gulf accompanied this request 
with an unsworn assertion th a t plain­
tif fs ’ attorneys had told the employees aL 
the m eeting it would lie against their 
in te rest to accept the back pay award 
offered pursuant to the conciliation 
agreem ent. P lain tiffs ' a tto rneys ada­
m antly denied th a t they had urged the 
employees to reject the conciliation 
agreem ent. The court gran ted  Gulf's 
motion w ithout m aking any findings.4

D efendants then moved to dismiss the 
complaint. In Novemlier, 1976, the court 
ordered th a t the motion lie treated  as a 
motion for sum m ary judgm ent, and 
g ran ted  sum m ary judgm ent for defend­
an ts in January , 1977. i ’lamufl.-. i.,-.c 
four issues on this appeal.

I.
111 The district judge dismissed 

p la in tiffs’ Title VII claim liccause plain­
tiffs failed to file su it within 90 days of 
receiving the first le tter, which sta ted  
tiia t conciliation efforts had failed and 
th a t plaintiffs could request a Notice-of- 
Right-to-Sue letter. The judge hold 
“th a t tile 90 day period for filing suit 
liegins when the notice of failure of con­
ciliation is sen t by the EEOC.” Since 
the trial court opinion in this case, how­
ever, this court has held differently . In 
Zambulu v. American Tel. & Tel. Co.. 
544 F.2d 1333 (5 Cir. 1977), a panel of 
this circuit noted thaL the s ta tu te  imjxis- 
ing the 90 day lim itation could be read 
to iiegin the 90 day period on receipt of 
a  notice th a t the EEOC has either failed 
to file a civil action or has not arrived a t

Decision as issued on August 15. I'JOS. You 
are  hereby notified that you m ay request a 
"N otice of Right to -Sue" from  this office at 
any time. If you so request, the  notice will 
be issued, and you will have ninety (P0) days 
from the date of its receip t to file suit in 
Federal D istrict Court.
it is advisable that, if you wish to pursue 
this m atte r further, you have an atto rney  
ready to proceed with the case prior to is­
suance of the Notice of Right to Sue. if von 
do not have an atto rney  and  you wish to 
proceed in Federal D istrict C ourt w ith your 
case, then call this office for assistance  in 
securing private legal counsel.

3. The Right-to-Sue le tters stated:
N O T IC E  O F  R I G H T  T O  S U E  

W I T H IN  DO D A Y S
Pursuan t to Section 7tlti(D o f  Title VII nl the 
Civil Rights Act of ifkvt, a s  am ended, you

are  hereby notified th a t you m ay, within 
ninety (90) days of receipt of th is com m uni­
cation. institu te  a civil action in the  appro­
priate  Federal D istrict Court. If you are un­
able to retain  a lawyer, the Federal D istrict 
Court, in its discretion, m ay appoint a law ­
yer to  represen t you and to au thorize com ­
m encem ent of the suit w ithout paym ent of 
fees, costs, o r security. If you decide to 
institu te  su it and find you need assistance, 
you m ay take  this notice, along with any 
correspondence you have received from the 
Com m ission, to the Clerk of the  Federal Dis­
tric t C ourt nearest to the place w here tfie 
alleged discrim ination occurred, and requesi 
th a t a Federal D istrict Judge appoint counsel 
to rep resen t you.

th is  o rder is set out in footnote 9, in fra .



BERNARD v GULF OIL CO. 5-ill
a conciliation agreem ent. T hat court 
sta ted , however, th a t the lim itations [*> 
riod does not l>egin to run until the 
EEOC has notified the claim ant “of l>oth 
the failure of conciliation anti the 
EEOC’s decision not to sue in order to 
indicate clearly tha t the adm inistrative 
process has been com pleted." Id. at 
1335. Accord Turner v. Tex:is Instru­
ments, Inc., 556 F.2d 1349 (5 Cir. 1977); 
P:igc v. U. S. Indus., Inc., 556 F.2d 346 (5 
Cir. 1977), ccrt. denied. 434 U.S. 1045. 98 
S.Ct. 890, 54 L.Ed.2d 796 (1978). F u r­
therm ore. the Zaml>uto panel held th a t 
the final paragraph of the initial le tte r 
informed Mrs. Zamhuto th a t “the EEOC 
was aw aiting  [her] request for issuance 
of a righl-to-sue letter. Implicit in this 
la tte r  sta tem en t is the assurance tha t 
the 90 day period would not commence 
until this le tte r was requested and dis­
patched. Because this paragraph de­
clared th a t fu rthe r adm inistrative action 
was contem plated by EEOC, it failed to 
furnish Mrs. Zam huto (or AT&T) with 
the form of notice required under 
§ 2000e—5(f)(1) to s ta r t  the 90 day period 
for filing su it.” 544 F.2d a t  1335. Be­
cause the tw o-letter procedure allowed 
the claim ant to [>ostpone filing suit, the 
Zam huto  panel declared the procedure 
invalid. Because the use and w onting of 
the two le tters was “paten tly  mislead­
ing, however, th a t panel m ade its ruling 
prospective only.

[2] A t oral argum ent, defendants 
conceded th a t the present case is directly 
controlled by Zam huto  and the cases fol­
lowing it. P laintiffs filed su it l>eforc the 
Zamhuto  decision, and the le tters plain­
tiffs received are indistinguishable from 
those involved in Zamhuto, Page, and 
Turner. As in Turner  and Page, the 
firs t le tte r plaintiffs received informed 
them  only th a t conciliation effo rts had 
failed; it did not indicate th a t the EEOC

had decided not to sue. Also, as in Page 
and Zamhuto, the concluding paragraph 
of the first le tte r  ttssured plaintiffs Lhat 
the 90 day [>orind would not commence 
until plaintiffs received the second 1. Her. 
Because the letters to the plaintiffs in 
this case were as “patently  m isleading” 
as those in prior cases, the 90 day period 
for filing suit did not l*'gin until receipt 
of the second letter. P laintiffs filed suit 
within this (teriod. Therefore, the dis­
trict court erred in dism issing the indi­
vidual Title VII claims of Bernard and 
Brown. A lso,, because the claims of 
these class representatives are properlv 
before the court, the d istrict court erred 
in dism issing the class claims and the 
claims of the other named plaintiffs who 
did not file a complaint with the EEOC. 
W heeler v. American Home Prrxl, 563 
F.2d 1233 ( 5 Cir. 1977); Oatis v. Crown 
Zellcrhach Corj>„ 398 F.2<1 496 (5 Cir. 
1963).

II.
The d istric t judge also gran ted  sum ­

m ary judgm ent in favor of defendants 
on p lain tiffs ' § 1981 claim. The trial 
judge found tha t p la in tiffs’ com plaint al­
leged only “the identical pa tte rn  of dis­
crim ination which was the subject of the 
Bernard, Brown and Johnson EEOC 
complaint, which pattern  has long since 
l>een elim inated.” In addition, the court 
found as a fact th a t there were no con­
tinuing acts of discrimination.

[3-5] D efendants make two argu­
m ents in supjiort of this holding. F irst 
they assert th a t the trial court properly 
grunted sum m ary judgm ent in their fa­
vor liccause plaintiffs failed to resjtond 
projierly to defendants’ sum m ary ju d g ­
ment motion. P laintiffs assert th a t de­
fendants have discrim inated in the past 
anti presently continue to discrim inate 
against blacks in hiring, assignm ent, pro-



5512 BERNARD v. (R EF OIL CO.

motion, training, recruiting, discipline, 
and discharge. D efendants argue th a t 
“appellants wholly failed to o ffer factual 
support for their assertions." Defond- 
ants-ap(iellees brief at 18. Defendants 
m isunderstand the sum m ary judgm ent 
practice. Under Fed.R.Civ.P. 5(5, the 
m oving party  has the initial burden of 
proving th a t there is no genuine issue of 
m aterial fact. If the m ovant wishes to 
dispute the allegations of the complaint, 
he must do so through affidavits, docu­
ments, or o ther evidence. ILiless anil 
until the m ovant initially provides factu­
al support for the sum m ary judgm ent 
motion, the opposing party  has no duty 
to respond to the motion or to present 
opposing evidence. Bonzman  v. Econom­
ics Lab., Inc., 537 F.2d 210 (5 Cir. 1976). 
In the present case, defendants present­
ed a g rea t num ber of affidav its with 
the ir sum m ary judgm ent motion, but in 
none of the affidavits did defendants 
deny th a t they are discrim inating 
against blacks. Therefore, the trial 
ju d g e’s ru ling  th a t there were no in­
stances of continuing discrim ination was 
unsupported by the sum m ary judgm ent 
record. Defendants, as the parlies re­
questing  sum m ary judgm ent, failed to 
m eet their burden of show ing the ai>- 
sence of any m aterial issue of fact.

[6-8] Defendants also argue th a t 
even if the facts p lain tiffs allege are 
true, we m ust dismiss p la in tiffs ' § 1981 
claim. In support of this contention, de­
fendants argue prim arily th a t the appli­
cable s ta tu te  of lim itations is th a t pro­
vider! by Tex.Rev.Civ.Stat.Ann. art. 5526, 
Johnson v. Goodyear Tire & Rubber Co., 
491 F.2d 1364, 1379 (5 Cir. 1974), and 
th a t under Texas law, the s ta tu te  of lim­
itations begins to run when the elements 
necessary for the cause of action first 
coalesce, regardless of w hether defend­
an ts later commiL other acts of the same

nature. U nder defendants' theory, the 
s ta tu te  of lim itations would have expired 
on p la in tiffs’ claim two years a f te r  de­
fendants liegan discrim inating against 
blacks, even if defendants couUnu. u 
such discrim ination to the tim e plaintiffs 
filed this action. This argum ent is frivo­
lous. Under both Texas and federal law. 
the relevant date  for the purposes of the 
s ta tu te  of lim itations is the last date  on 
which defendants improperly harmed 
plaintiffs. Furtherm ore, plaintiffs may 
collect dam ages for any wrongful acts 
defendants com mitted within the lim ita­
tions period. E. g.. Marlowe v. Fisher 
Roily, 489 F.2d 1057. 1063 ( 6 Cir. 1973): 
Macklin v. S/mclnr Freight System s, Inc., 
156 U.S.App.D.C. 69, 77, 478 F.2d 979. 
987 (1973); United S ta les  r. Georgia 
Power Co.. 474 F.2d 906, 924 (5 Cir. 
1973); A lexander & Pulley Const. Co. c. 
Sfiain, 477 S.W.2d 301 (Tex.Civ.App.— 
Tyler 1972 no writ); Goldman v. Ram ­
say, 62 S.W.2d 176 (Tex.Civ.App.—Tex­
arkana 1933 erro r dism'd). D efendants' 
reliance on Kit troll v. City o f  Rockwall, 
526 F.2d 715 (5 Cir.), cert, denied, 426 
U.S. 925, 96 S.Ct. 2636. 49 L.Ed.2d 379 
(1976), is unfounded. T hat ease turned 
on the rule, peculiar to trespass cases, 
th a t the s ta tu te  of lim itations liegins to 
run on the date when the trespassers 
first entered the land, even if they con­
tinue to use the land a f te r  th a t date. 
Baker v. City o f  Fort Worth, 146 Tex. 
600, 210 S.W.2d 564 (1948). This rule 
cannot he applied when defendants, as in 
this case, continue to violate plain tiffs ' 
rights w ith new and distinct actions.

•
[9 | Therefore, the d istric t judge 

erred  in holding th a t the s ta tu te  of limi­
tations totally barred p la in tiffs’ § 1981 
claim. P lain tiffs’ cause of action and 
any recovery Ihev may receive, however, 
m ust be limited to those violations occur­
ring within the two year |M:riod iminedi-



BERNARD v. (UI! '■ OIL CO. 5:' III

at-ely preceding ihe filing of tho com­
plain t or thereafte r.

In addition to holding th a t s ta tu te s  of 
lim itations barred p la in tiffs- claims, the 

j d istric t court “acknowledge^! | a most 
compelling argum ent for the equitable 

- doctrine of laches in this particu lar case 
• ’ Because we disagree with 

.. the c o u rts  ruling on the legal defenses, 
we find it necessary to discuss this a lte r­
native theory in support of the judgm ent 
below. Loire v. Pale Stcvetloring Co., 
558 F.2d 769. 770 n. 2 (5 Cir. 1977).

[10] In Franks i\ Bn ivmun Tmnsp. 
Co., 495 F.2d 398, 406 (5 Cir. 1974). ro v’d 

< on o ther grtis., 42-1 U.S. 747, 96 S.CL 
1251. 47 L.Ed.2d 444 (1976), this court 

t held th a t the doctrine of laches is appli-
; cable to Title VII and § 1981 actions
j brought by private p laintiffs, even if the 

legal lim itations periods have not run. 
To apply laches in a particu lar case, the 

; court m ust find both th a t the plain tiff 
j delayed inexcusably in bringing the suit 

and th a t this delay unduly prejudiced de­
fendants. Save Our Wetlands. Inc. r. 
Lr.S. A rm y Cor;xs o f  Engineers, 549 F.2d 

t 1021, 1026 (5 Cir.), cert, denial, 434 U.S.
i 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977).
j We conclude th a t the evidence l>efore
j tho court on this sum m ary judgm ent mo-
| tion does not allow a finding th a t either
|  of these elem ents exists.5 D efendants

argue th a t plaintiffs were aw are of their 
cause of action a t !e:ist as early  as 1967 

i when they filed their initial charges
' aga inst defendants with the EEOC.

S. W hich party  has the burden of proof on the 
; issues of laches is som ew hat unclear. S e e  G.

Gilm ore & C. Black. The Law of A dm iralty 
/ . I  76 (2d ed. 1975); Laiv r. R o y a l  P a lm  
B e a c h  C o lo n y .  578 l\2 d  98. 101 (5 f i r .  I97H); 
W h e a t  v. H all. 335 K.2d 874. 876 (5 Cir. 1976). 
The determ ination  is com plicated by the fact

They also assert th a t p laintiffs could 
have requested a Notice of Right to Sue 
from the EEOC and filed a private ac­
tion in 1970. 35 Fed.R.-g IfXMHi (.Inn**
18, 1970) (currently  at 29 < .!•' it. liifil 2 .,e 
(1977)). Defendants therefore argue 
tha t p laintiffs' failure to file a com plaint 
with the district court until 1976 “shows 
conclusively that they have slept on their 
rights." Defendants-apfiellees’ brief at
28. The only justification p laintiffs of­
fer for this nine-year delay in filing suit 
is their lessened righ t to aw ait tho com­
pletion of the EEOC adm inistrative proc­
ess. The issue before us, therefore, is 
whether p lain tiffs ' failure to file a pri­
vate action until a f te r  tile term ination of 
the EEOC's active, continuing adm inis­
trative process is unreasonable.

The Suprem e Court in Occidenttd L ife  
Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 
2447. 53 L.Ed.2d 402 (1977), discussed a 
sim ilar issue. The em ployer-defendant 
in Occitlental L ife  claimed tha t either 
federal or sta te  sta tu tes  barred the 
EEOC from in itiating  suit more than 
three years a f te r  a claim ant had filed a 
charge with the EEOC. In language 
particularly applicable to the present 
case, the Court indicated: “When Con­
gress f irs t enacted Title VII in 196-1 it 
selected '[cjooperation and voluntary 
compliance . . .  as the preferred 
means for achieving’ the goal of equality 
of em ploym ent op[Mirtunities.'' Id., 97 
S.Ct. a t 2455. A legislative analysis of 
the 1972 am endm ents to Title VII is sim ­
ilar:

It is hof>ed th a t recourse to the private 
lawsuit will be the exception and not .

that the question has arisen m ost often in nd- 
m iraity cases, which may not be ^mirclv co n ­
trolling in the  present case. We find it u n nec­
essary  to decide this issue, how ever, b e c a u s e  
the la d s  a s  presented  on tins sum m ary ju d g ­
m ent m otion, w ithout more, do not allow a 
finding of laches.



5514 BERNARD v. GI ' F OIL CO.

the rule, and th a t the vast m ajority  of 
com plaints will he handled through the 
offices of the EEOC or the A ttorney 
General, as appropriate. However, as 
the individual's r igh t to redress are 
param ount under the provisions of Ti­
tle VII it is necessary th a t all avenues 
be left open for quick and effective 
relief.

118 Cong.Rec. 7555 (1972).
[11,12] These s ta tem en ts clearly indi­

cate th a t the privaLe remedy allowed by 
42 U.S.C. § 2000e-5(f)(l) is only an a lte r­
native method for a p la in tiff to obtain 
relief from discrimination. A plaintiff 
cannot be penalized for choosing to forgo 
this alternative and electing instead the 
legislatively and judicially favored m eth­
od of relying on the adm inistrative 
processes of the EEOC.* We therefore 
hold th a t p la in tiffs’ failure to file their 
Title VII claim until completion of the 
EEOC process was not inexcusable delay 
and could not support the application of 
laches.

[13] P lain tiffs’ § 1981 claim is in a 
slightly d iffe ren t posture. We have al­
ready decided th a t the s ta te  s ta tu te  of 
lim itations prevents plaintiffs from as­
se rting  claims arising more than two 
years before the filing of the com plain t 
Therefore, any delay occurring before 
th a t  period is irrelevant to the § 1981 
claim. D efendants have not alleged th a t 
plaintiffs delayed inexcusably in assert­
ing the claims arising within those two 
years. Therefore, it is unnecessary for 
us to consider w hether laches could be 
invoked to bar those claims arising with­
in the legal lim itations period.

6. As sta ted  in S a n g s te r  v. U n ite d  A i r  L in es .  
438 F.Supp. 1221 (N.D.Cal. 1977):

Mrs. Songster's reliance on the EEOC to 
conciliate her dispute w ith United cannot be 
characterized  as lack of diligence on her part 
in view of the strong federal policy favoring

[14. 15] We also conciutle that, on the 
evidence presented, any prejudice su f­
fered by defendants was caused not by 
p la in tiffs’ delay but by defendan ts’ own 
actions. In the only affidavit supporting 
this elem ent of defendan ts’ sum m ary 
judgm ent motion, the [lersonnel director 
of Gulf indicated tha t since the date 
when plaintiffs allege the violations be­
gan, defendant Gulf has made several 
[icrsonncl changes, a number of m anage­
m ent personnel have retired, and * wo 
personnel m anagers have deceased. 
These s ta tem en ts are insufficient 
grounds on which to base a finding of 
prejudice. The fact th a t there have 
been jicrsonnel changes or th a t employ­
ees have retired is irrelevant unless those 
employees are unavailable. A kers v. 
S ta te  Marine Lines, Inc., 344 F.2d 217, 
221 (5 Cir. 1965).

[16, 17] The affidavit does indicate 
th a t two form er personnel m anagers 
have died and th a t those em ployees’ 
knowledge is irreplaceable. Gulf asserts 
the live testim ony of these employees is 
necessary, however, only because it has 
destroyed the w ritten  records of the per­
sonnel decisions made from 1955 through 
1974. D efendants argue th a t they can­
not now adequately defend against 
p la in tiffs’ charges w ithout reference to 
these destroyed records. The EEOC in­
formed defendants of the charges in 
1967. P ursuant to its normal docum ent 
retention plan, Gulf retained docum ents 
for only fo u r years. Thus, Gulf did not 
destroy the docum ents relevant to the 
claims arising in 1965 until 1969, two .

such reliance. She cannot he found chargea­
ble w ith neglect which would bar her right 
to bring this action  when, tru sting  in the 
good offices and prom ise of her governm ent 
to seek resolution of her com plaint, she com ­
m its th a t grievance to its care.

I



RERNARD v GULF OIL CO. 5515
years a f te r  Gulf learned of the charges. 
A p arty  cannot assert the defense of 
laches merely because it has failed to 
preserve evidence despite knowledge of a 
pending claim. American Marino Corji. 
v. Citizens Cas. Co., 4-17 F.2d t.'ittS (5 Cir. 
1971).7 This rule is of even g rea te r va­
lidity in this case than in most. Since 
1966, the EEOC h;is m aintained a regu­
lation prohibiting those charged with Ti­
tle VII violations from destroying rec­
ords relevant to the charge. Ill Fed.Reg. 
2S33 (Feb. 17, 1966) (curren tly  a t 29 
C.F.R. 1602.14 (1977)). Therefore, de­
fendants ' argum ent th a t p la in tiffs ' delay 
prejudiced defendants is w ithout merit. 
Insofar as defendants have been preju­
diced, the evidence before the court 
shows th a t defendants’ own negligence 
and disregard of EEOC regulations 
caused the prejudice.8 We conclude tha t 
the present facts do not allow findings

7. The concluding sta tem en ts of the  Suprem e 
C ourt in O c c id e n ta l  L i fe  a re  again relevant:

The absence o f  inflexible tim e lim itations on 
the bringing of law suits will not. as the com- 
panv asserts, deprive defendan ts in Title VU 
civil actions of fundam ental fairness or sub ­
jec t them  to the surprise  and prejudice that 
can  result from  the  p rosecution  of sta le 
claim s. Unlike the liti|’nnt in a private  ac­
tion w ho m ay first learn of the  cause anainst 
him upon service of the com plaint, the Title 
M l defendant is alerted  to the  possibility of 
an enforcem ent suit w ithin 10 days after a 
charge has been filed. This prom pt notice 
serves, as C ongress intended, to give him an 
opportun ity  to  gather and preserve evidence 
in anticipation of a court action.
M oreover, during the pendency of EEOC ad­
m inistrative proceedings, a potential defend­
an t is kept inform ed of the progress of the 
action. R egulations prom ulgated  by the 
EEOC require tha t the charged party  be 
prom ptly notified w hen a determ ination  of 
reasonable cause has been m ade. 29 CFR 
§ 1601.19b(b), and when the  F.EOC has te r­
m inated its efforts to conciliate a dispute 
id-. $§ 1601.23. 1601.25.

97 S.Ct. at 2458.

of uithur utirdJLsotuilile cicltxv or p re ju ­
dice. Therefore the doctrine of laches is 
inapplicable.

IV.

[IS] Recause we tire rem anding this 
case for fu rthe r action, it is necessary 
th a t we consider the propriety of an or­
der the d istric t judge entered restric ting  
the parties' communication with the 
tnemlx.'rs of (he putative class. Judge 
Sieger, in Chief .Judge Fisher's absence, 
originally entered an order generally 
prohibiting all communication w ithout 
exception. Chief Judge Fisher la ter 
modified the order. It is of this la ter 
order that plaintiffs complain on appeal. 
The modified order was explicitly mod­
eled on those suggested by the Federal 
Judicial C enter in the Manual for Com­
plex Litigation, P art 2, § 1.41 (1977).’

8. D efendants adm it that p laintiffs' § 1981 
claim s are nearly identical to their Title VU 
claim s. D efendants could therefore disprove 
the claim s with the sam e evidence. Since the 
“  FOC regulations required defendants to 
m aintain all records relevant to the Title VII 
claim s, detendan is could not have been p re ju ­
diced with respect to either Title VII or i  1981.

9. The o rder provided:

IT IS ORDERED:
(1) That G u lfs  m otion to modify Judge S ieg ­

e r 's  O rder dated May 28. 1976 is granted:
(2) That Judge S tc g e rs  O rder dated  M ay 23. 

1976 be modified so as to read as follows:
In this action, ail parties hereto  and their 

counsel are  forbidden directly or indirectly, 
orally o r in w riting, to com m unicate concern* 
ing such action with any potential or actual 
class m em ber not a form al party  to the action 
w ithout the consent and approval of the pro» 
posed com m unication and proposed ad dress­
ees by order of this Court. Anv such (im ­
posed com m unication shall he presented  to 
this C ourt in w riting with a designation of or 
description of ail addressees and w ith a mo­
tion and proposed o rder for prior approval by 
th is C ourt of the  proposed com m unication. 
The com m unications forbidden by tins order



5316 BERNARD v. ( 'LF OIL CO.

P lain tiffs argue th a t the order was im­
proper for several reasons. F irst, they

include, but are not lim ited to. (a) solicitation 
d irectly  o r indirectly of I^gni represen tation  of 
potential and actual class m em bers who are 
not formal parties to the class actum ; (b) so ­
licitation of fees and expenses and agreem ents 
to pay fees and expenses from  potential and 
actual class m em bers w ho are  not form al par­
ties to the class action: (c) solicitation by for­
mal parties to the class action of requests by 
class m em bers to opt out in class actions un­
der subparagraph  (b)(3) of Rule 23. F.R.Civ.P.. 
and (d) com m unications from counsel or a p ar­
ty w hich m ay tend to m isrepresent the sta tus, 
purposes and effects of the class action, and of 
any actual or potential C ourt orders therein 
w hich m ay create  im pressions tcuiding. w ith­
ou t cause, to reflect adversely  on any party, 
any counsel, this Court, or the  adm inistration  
of justice. The obligations and prohibitions of 
th is order are not exclusive. All o th er ethical, 
legal and equitable obligations are unaffected 
by this order.

This o rder does not forbid ( l)  com m unica­
tions betw een an a tto rney  and his client or a 
p rospective client, who has on the initiative of 
the  client or prospective client consulted  with, 
em ployed or proposed to em ploy the attorney, 
or (2) com m unications occurring  in the regular 
course of business or in the perform ance of 
the  duties of a public office o r agency (such as 
the  A ttorney G eneral) w hich do not have the 
effect of soliciting represen tation  by counsel, 
o r m isrepresenting  the sta tus, purposes or ef­
fect of the  action and orders therein.

If any party  or counsel for a partv  a sse rts  a 
constitu tional right to com m unicate w ith any 
m em ber of the class w ithout prior restrain t 
and does so com m unicate pu rsuan t to th a t as­
serted  right, he shall w ithin five days after 
such com m unication file w ith th e  C ourt a copy 
of such com m unication, if in w riting, or an 
accurate  and substantially  com plete sum m ary 
of the  com m unication if oral.

(3) That Gulf be allowed to proceed 'with the 
paym ent of back pay aw ards and the obtaining 
of receipts and releases from those em ployees 
covered by the Conciliation A greem ent dated 
April 14, 1976, betw een Gulf, the U.S. Equal 
Em ploym ent O pportunity  Com m ission and the 
Office for Equal O pportunity , U.S. D epartm ent 
of the  In tenon  That the private  settlem ent of 
charges that the em ployer has violated Title 
VII is to be encouraged. U n ite d  S ta r r s  v. A  H r-

;ussert th a t it is inconsistent with the 
policies of Rule 23 of the Federal Rules

p h c n y - L u d lu m  In d u s tr ie s .  In c ., 517 F 2d  826 
(5th Cir. 1975). cerr. d e n i f t t  125 U.S 944 9*1 
S.Ct. 1684. 48 L.Ed.2d 187 (1970/

(4) That the Clerk of the C ourt mail a notice 
to all em ployees of Gulf at its Port A rthur 
Refiner.' w ho are covered by the Conciliation 
A greem ent and w ho have not signed receipts 
and releases for back pay aw ards inform ing 
them  that they have 45 days from  the date  of 
the Clerk s notice to accept the offer as pro­
vided for by the Conciliation A greem ent or 
such offer will expire until fu rther order of the 
Court:

(5) That the con ten ts of the notice be the 
sam e as th a t set out in A ppendix I;

(6) That Gulf bear the expense ol mailing the 
notice and a copy of the Court s o rder to the 
individuals covered by item (4) above;

(7) lh a t  ail em ployees who have delivered 
receip ts and releases to Gulf on or before 55 
days from  the  date of the C lerk 's notice snail 
be deem ed to  have accepted the offer as con­
tained in the Conciliation Agreem ent;

(8) T hat any fu rther com m unication, either 
d irect o r indirect, oral o r in w riting (other than  
those perm itted  pursuan t to parag raph  (2) 
above) from  the nam ed parties, the ir rep re ­
sentatives or counsel to the poiem iaJ or actual 
class m em bers not form al parties to this action 
is forbidden;

(9) T hat Gulf inform the C ourt 65 days from  
the date  of the C lerk 's notice to be sent by the 
Clerk of the C ourt of the  nam es of potential or 
actual class m em bers who have accepted the 
offer of back pay and signed receip ts and re­
leases pu rsu an t to the Conciliation A greem ent 
and the nam es of those who have refused or 
faded to respond.

It is P la in tiffs  contention th a t any such pro­
visions as hereinbefore sta ted  th a t limit com ­
m unication w ith potential class m em bers are 
constitu tionally  invalid, citing R o d p e r s  v. U n i t ­
e d  S ta t e s  S te e l  C o rp o r a tio n .  508 F.2d 152 (3rd 
Cir. 1975). c e r t,  d e n ie d , 420 U.S. 969. 95 S.Ct. 
1386. 43 L.Ed.2d 649 (1975). This C ourt finds 
that the R o d p e r s  case is inapplicable, and that 
th is o rder com ports with the requisites set out 
in the M a n u a l fo r  C o m p le x  U t ip a t io n .  Section 
1.41, p. 106 CCH Edition 1973. w hich specifi­
cally exem pts constitutionally  p ro tected  com ­
m unication w hen the substance of such com ­
m unication is filed w ith the Court.



BERNARD v  GULF OIL CO.

of Civil Procedure and therefore beyond 
the powers of the d istric t court. We 
re ject th a t argum ent and hold th a t the 
order was a permissible, exercise of the 
trial court’s discretionary jxnver in con­
trolling a class action.

As one noted treatise sta tes:

Because class actions tend to be ex­
trem ely complicated and protracted, 
the ir m anagem ent and disposition fre­
quently  require the exercise of con­
siderable judicial control and ingenuity 
in the fram ing of orders rela ting  to 
various aspects of the case. Rule 23(d) 
provides the trial court w ith extensive 
discretion in achieving this objective 
and offers some guidance as to the 
types of problems the d istric t judge i3 

likely to encounter.

7A C- W right & A. Miller. Federal Prac­
tice & Procedure § 1791 a t  193 (1972).">

[19-21] Wo holieve the trial judge 
could have easily concluded thaL his in­
te re s t in and duty of controlling the suit 
in this m anner outweighed any in terest 
p la in tiffs’ attorneys may have in commu­
nicating  with memlvers of the putative 
class w ithout the prior approval of the 
court. Rule 23 imposes on the trial 
ju d g e  the du ty  of assuring th a t a class 
action is an appropriate way to resolve 
the controversy, the represen tative par­
ties will fairly and adequately protect 
the interests o f the class, the pleading 
and trial o f the case is conducted fairly 
and efficiently, and any se ttlem en t or 
compromise is not unfavorable to the

class." The present order could be help­
ful in exercising many of these duties, 
especially those of nunuing fairrn uid 
efficiency. Any comniuiiieatiun U.-u.i ,.u 
the parties and class inemiiers mav mis­
lead the cliuss mem ber; by a p ^ a r in g  to 
reflect the opinion of the court ra th e r 
than th a t of the party  m aking the com­
munication. This danger exists "simply 
localise of references to the title of the 
court, the style of the action, the name 
of the judge, and to official processes." 
Manual for Complex Litigation, P a rt 1,
§ U 1  a t 27 (C. W right & A. Miller ed.’ 
19<;). The trial court should therefore 
have the |x>wer to exam ine any commu­
nication in order to assure tha t class 
memliers will not lie misled in this m an­
ner. Even ap a rt from any references to 
the court, communications to potential 
class members by the parties may un­
fairly represent facts or issues relevant 
to the action. When those communica­
tions a re  sent during a limited fieriixl in 
which class momticrs may opt out of the 
class, or, as here, in which they may 
accept a  hack pay offer pursuant to a 
conciliation agreem ent, any m isleading 
sta tem en t may lx; irreparable. The trial 
judge may also believe th a t requiring 
prior approval of communications will re ­
duce the risk of the class meml>ers Up­
coming confused by an avalanche of no­
tices, inquiries, and argum ents directed 
to them by each of the parties to this 
action. Thus, there are many substan­
tial reasons a trial judge may believe 
th a t an order such as tha t suggested In’

10. See In  R e  A i r  C ra s h  D is a s te r  a t  F lo rida  
E v e r g la d e s ,  549 F 2d 1006. 1012 n. X (5  Cir. 
1977): "In class actions w e recognize. indeed 
insist upon, the cou rt's  partic ipation  as the 
m anager of the case .”

n .  Thus, a lthough in the o rdinary  n.m -class 
su .t, restric tions such as I hose in the  present

case m ight he entered in the form of a tem po­
rary  injunction and only after relatively strict 
scrutiny of specific criteria, the d rafters of the 
Kulcs felt that the tn a i judge needed broader 
pow ers w ith respect to class a n io n s  and spe- 
ciaily im bued the district coon  with m ore ex 
tensive au tho rity  to control Hit- sun.



5318 BERNARD GULF OIL CO.

the Manual for Complex Litigation is 
ju stified .11

P lain tiffs assert the ir interests out­
weigh these concerns of the trial judge. 
P lain tiffs argue tha t to conduct the ac­
tion adequately they m ust be allowed to 
contact class members in order l>olh to 
discover their case and to inform class 
members of the ir civil rights. They al­
lege th a t the order prevents them from 
perform ing those functions. This is not 
true; the order only prohibits contact 
w ith class members w ithout prior a|>- 
proval of the court. Therefore, only 
p la in tiffs’ in terest in u n r e s t r a i n & i  com­
munications is to be balanced against the 
court’s in terests in requiring  court ap­
proval of all communications sen t to 
class members.

[22-24] P lain tiffs’ ability to discover 
the ir case is in no way reduced by the 
requirem ent th a t the court approve any 
contact. I t is expected th a t the trial 
judge will exercise “minimal judicial con­
trol of these communications . .”
and freely allow discovery. Manual for 
Complex L itigation. P a rt 1, § 1.41 a t  2D 
(C. W right & A. Miller ed. 197”). The 
trial judge should refuse to allow only 
those a ttem pts a t discovery th a t would 
d ea rly  affect the fairness or efficiency

12. T he M anual enum erates o ther potential 
abuses th a t m ay justify  the use of such an 
order, for exam ple: solicitation of direct legal 
represen tation  of potential and actual class 
m em bers w ho a re  not form al parries to the 
class action; and solicitation of funds and 
agreem ents to pay fees and  expenses from po­
ten tial and actual class m em bers w ho -are not 
form al parries to the class action. Arguably 
these concerns are not significant in this case 
in which th e  potential class is represen ted  by a 
non-profit o rganization  w hose fees are not 
paid directly by the  class m em bers.

13. C o m p a r e  D evelopm ents in the I-uw-CIass 
A ctions. 89 Harv.L.Rev. 1281, 1601-04 (1976), 
w i th  W a ld o  v. l ^ t k e s h o r e  Estates. In c ., 433 
F.Supp. 782. 792 n. 10 (E.D.La. 1977).

of the litigation adversely. P laintiffs 
have not shown th a t this “minimal con­
tro l” would prejudice them  in any way. 
Therefore, we do not believe p laintiffs 
have any significant in terest in a* I ing 
discovery w ithout the prior approval of 
the court. Similarly, to the ex ten t th a t 
Rule 23 implicitly provides plaintiffs 
w ith a r igh t to “encourag{e] common 
participation in the litigation of [plain­
tif fs ’ race] discrim ination claim ,” Coles v. 
Marsh, 5o0 F.2d 180. 1S9 (3 Cir.), cert. 
denied sub nom., Blue Cross v. Marsh, 
434 U.S. 985, 98 S.Ct. fill. 54 L.Ed.2d 479 
(1977), th a t same ru le’s explicit g ran t of 
au thority  to the trial court to control the 
conduct and se ttlem en t of the action ou t­
weighs p la in tiffs’ right. Therefore, al­
though there may be o ther methods of 
achieving sim ilar results,15 Rule 23 does 
not prohibit a trial court’3 discretionary 
use of an order requiring prior approval 
of communications with class members.14

[25] P lain tiffs nex t argue th a t the 
order is an unconstitutional prior re­
s tra in t on the ir communication with the 
class and is es[>ecially egregious in this 
case in which plaintiffs arc represented 
by an organization highly regarded as an 
effective opfionent of discrimination.

14. B ecause the trial judge m ade no findings of 
fact concerning plain tiffs’ a tto rneys' alleged 
im proprieties. the allegations are  irrelevant to 
our decision. We hold th a t the  trial judge had 
the pow er to restric t com m unications w ithout 
regard to any allegations of unethical conduct. 
This holding is necessary  because m any of the 
dangers of abuse  and irreparab le  harm  dis­
cussed  above can arise w ithout warning. Re­
quiring the  d istric t court to find specifi* evi­
dence of the  dangers in a particu lar case be­
fore acting  would severely ham per its ability 
to  control the case. In m any instances, the 
abuses m ust not m erely lie punished, but m ust 
be prevented. I bis can be accom plished only 
if the trial judge can order th e  restric tions be­
fore the abuses have m aterialized.



BERNARD V 311LF OIL CO. 55 19

This argum ent is considered and rejected 
in the recent revision of the Manual for 
Complex Litigation. P art 1, § 1.41 a t 1-3 
(C. W right & A. Miller ed. 1978 Cum. 
Supp.) and in Wultlo r. L*ikeshore Es­
tates, Inc.. 433 F.Supp. 782 (K.D.La. 
191 i). We find it unnecessary, however, 
to decide w hether the in terests discussed 
above would also ju stify  the prior re­
s tra in t of any constitutionally protected 
communication. The o rder in the 
present case, unlike those in Rodgers v. 
United  S tates Steel Curp.. 508 F.2d 152 
(3 Cir.), cert, denied. 423 U.S. 802, 96 
S Ct. 54, 46 L.Ed.2d 50 (1975), W idth  or 
the Manual, explicitly exem pts communi­
cations th a t a party  or counsel asserts 
are constitutionally protected from prior 
restra in t.

[26] Despite this provision, plaintiffs 
argue th a t the order chills their free ex­
ercise of protected activities itecausc 
they can never lie certain  th a t the dis­
tr ic t court will agree with their assertion 
th a t the communication is protected.15 
As an exam ple of such a disagreem ent, 
p lain tiffs rely on an incident in Lho trial 
court. P lain tiffs subm itted a document 
to the court fo r approval asserting  that 
it was constitutionally protected. The 
judge refused to allow pla in tiffs to send 
the document to the class members. 
P lain tiffs argue th a t if they had sent the 
docum ent w ithout subm itting  it they 
may have iveen subject to a contem pt 
order. This argum ent is w ithout merit. 
The exemption applies when the parties 
m ake any communication they assert is 
protected, not merely when the trial 
judge agrees with th a t assertion. Thus, 
as long as a party  or counsel makes any 
unapproved contact with class members 
in the good faith lielief th a t the contact

13. See Note, 88 Harv.L.Rev. 1911. 1922 n. 7-t 
(1973): The "proviso  exem pting  constitu tional­
ly-protected com m unication does not elimi-

is constitutionally shielded, he may not 
lie punished for violating the court's o r­
der. Once p laintiffs submillc-d the ,. 
[>osed communication to the
judge, however, the exem ption f„r c o m ­
munications they asserted were constitu­
tionally protected was no- longer rele­
vant. At tha t [mint the issue became 
w hether the Constitution, in fact, pro­
tected the communication ra th e r than
w hether the plaintiffs had distributed it 
in the good faith liolief that it was con­
stitutionally  protected. P laintiffs have
not argued on appeal th a t the trial judge 
erred in deciding tha t he could projierly 
prohibiL the distribution of tha t particu­
lar docum ent nor have they alleged his 
determ ination was untimely. They have 
alluded to the incident only as an exam ­
ple of the alleged “chill” the order pro­
hibiting unapproved communication 
placer 1 on the exercise of their first
am endm ent rights, notw ithstanding the 
exception for communications thev as­
serted to lie constitutionally protected. 
Therefore, we need not decide w hether 
the judge pro[>erly prohibited dissemina­
tion of this particu lar notice a f te r  plain­
tiffs subm itted it for his approval. We 
note, however, th a t even though the pro­
hibition on unapproved communications 
is permissible, the ju d g e’s separate  deci­
sions approving or disapproving particu­
lar communications would normally t>c 
projier subjects for apfieHate review.

[2 i] Wo conclude th a t the present or­
der adequately safeguards the first 
am endm ent rights of the parties and 
counsel iiecnuse even if the prohibitions 
of the order are vague or overbroad, the 
parties can avoid them if they assort a 
good faith lielief tha t a particular com­
munication is constitutionally protected.

n a tr  indeed it h ichhphts— the ovprbrendth 
and resu ltan t chilling effort of the M anual's 
proposed rule."



5320 BERNARD GULF OIL CO.

Cf. Screws v. United S ta tes, 325 U S. 91, 
101-02. 65 S.Ct. 1031, 1035-36. SO L.Ed. 
1495 (1945): “the requirem ent of specific 
in ten t to do a prohibited act may avoid 
those consequences to the accused which 
may otherw ise render a vague or indefi­
nite s ta tu te  invalid.”

[28] P lain tiffs’ final contention is 
th a t the order violates their righ t to 
equal protection of the laws. This claim 
is based on the assertion th a t the order 
allows defendants to o ffer back pay se t­
tlem ents to the class members and to 
contact class members in the ordinary 
course of defendants’ business w ithout 
allowing plain tiffs sim ilar rights. This 
argum ent is invalid because it is based 
on an incorrect reading of the order. 
The order prohibits defendants as well as 
plaintiffs from contacting  the class mem­
bers regarding back pay settlem ents. 
R ather than allowing fu rth e r  contact by 
e ith er party , it directs t.he court clerk to 
d istribu te a notice to class members in­
form ing them th a t they have 45 days 
w ithin which to accept the back pay 
aw ard to which they are entitled  under 
the conciliation agreem ent negotiated by 
the EEOC and directs them  not to accept 
the aw ard if they wish to  participate in 
any recovery secured by p lain tiffs in this 
action. F urther, the provision allowing 
communication with class members in 
the regular course of business applies 
equally to all parties and counsel, not 
merely to defendants. It could tic a r­
gued th a t allowing contact in the regular 
course of business would tend to favor 
defendants in practice because of their 
g rea te r day-to-day contact with the em­
ployees. Any m anagem ent discussion of

1. Sam ple Pretrial O rder No. 15. The suepest- 
ed form  is a reprin t of a pretria l o rder entered 
by the  District C ourt for the W estern District 
of Missouri. M a n u a l.  Pt. 2. § 1.41 n.33.

the merits of the suit with class mem- 
lx»rs, however, would not he in the regu­
lar course of business. Therefore, al­
though defendants may have g rea te r 
day-to-day contact with the cl.- ■; mem­
bers, the order does not allow defendant* 
any g rea te r freedom than plaintiffs in 
discussing the suit w ith class members.

We therefore conclude th a t the d istrict 
court’s order of June 22, 1976, is a per­
missible exercise of the cou rt’s [lower to 
control class action litigation and is pro­
hibited by neither the first nor fifth  
am endm ents to the Constitution.

The judgm ent of the d istric t court is 
REVERSED and the case REMANDED 
for proceedings consistent w ith this opin­
ion.

GODBOLD, Circuit Judge, concurring 
in p a r t and dissenting in part:

I concur in P arts I through III of the 
m ajority opinion. I dissent from P art 
IV, which upholds the validity of the 
d istric t court's order restric ting  commu­
nications by named parties and their 
counsel w ith any actual or potential class 
m em ber not a formal party .

The issue is im portant. The critical 
p art of the order in question follows the 
form  suggested in the Manual for Com­
plex Litigation, 1977 ed., Pt. 2, § 1.41.1 
This case presents in this circuit for the 
first tim e the validity of such an order. 
A nother circuit has taken a [xisition con­
tra ry  to the m ajority 's decision.2

In o ther cases I have vigorously as­
serted the [xiwcr of the d istric t court to 
m anage class actions and o ther complex

2. C o le s  v. M a r sh . 560 F.2d 186 (CA3), cert.
d e w e d .  434 U.S. 985. 98 S.Ct. 611. 54 I..Ed.2d
479 (1977). S e e  a ls o  R o d c e r s  v. U n ite d  S ta t e s
S t e e l  C o rp .. 508 F 2d 152 (CA3). cert, d e w e d ,
423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).



BERNARD v 5521j ULF OIL CO.

cases.5 But, in my opinion, the re­
stra in ts  imposed in this case contravene 
Rule 23, F.R.Civ.P., and violate freedom 
of speech and freedom of association as 
guaran teed  l>y our Constitution.

I. The history
U nderstanding the issues requires a 

more complete history than the brief 
s ta tem en t made by the m ajority. In 
April 1976 Gulf and EEOC entered  into 
a conciliation agreem ent covering alleged 
racial discrimination by Gulf against 
black employees a t its P ort A rthur, T ex­
as plant, pursuant to which Gulf agreed 
to cease alleged discrim inatory practices, 
establish an affirm ative action program, 
and o ffer back pay to alleged discrimi- 
natees, ranging, for various employees 
and various periods, l>etween $2.81 per 
m onth of service and $5.62 per month of 
service. The affected employees were 
not parties to the agreem ent. Gulf 
agreed to notify affected  employees of 
the back pay agreed upon; failure of the 
employee to respond would be regarded 
as acceptance. According to Gulf, back 
pay was offered to 614 present and for­
m er black employees of the Port A rthur 
plant.4

In May 1976, while im plem entation of 
the conciliation agreem ent was in 
progress, six present or retired  black em­
ployees of the Port A rthu r p lant brought 
this class suit, under T itle VII of the 
Civil Rights Act of 1964 and 42 U.S.C. 
§ 1981, on behalf of black employees, 
black form er employees of the plant, ami 
black applicants rejected for employment 
w ith Gulf Oil Company (not limited to 
the Port A rthu r plant). P lain tiffs were 
represented by S tella Morrison, of Port

3. In  r e  A i r  C ra s h  D is a s te r  a t  F lo rid a  E v e r ­
g la d e s ,  549 F.2d 1006, 1012 & n.8 (CA5. 1977);
H u f f  v . .V. D. C a s s  C o .. 485 F.2d 710, 712-13
(CAS, 1973) (en banc).

A rthur, Charles E. Cotton, of New Orle­
ans, and three New York atto rneys from 
the NAACP Ix“gal Defense and Educa­
tion Fund, Jack Gr<‘ nlx’rg, Barry L. 
Goldstein and Ulysses Gene ThiUxleaux. 
P lain tiffs asked injunctive and declarato­
ry relief and dam ages. The defendants 
are Gulf and the Oil, Chemical and 
Atomic W orkers’ Union. P laintiffs 
charged th a t Gulf discrim inated against 
blacks in hiring and job assignm ents, 
employed discrim inatory tests, paid un­
equal pay, employed racially tainted pro­
motion and progression practices, denied 
train ing  to blacks, refused seniority to 
blacks, anil discrim inaterily discharged 
and disciplined blacks. They alleged 
tha t the union had agreed to, acquiesced 
in o r condoned Gulf’s discrim inatory 
practices.

According to affidavits la te r filed by 
p la in tiffs’ counsel, a m eeting of black 
employees who were memt>er3 of the al­
leged class was held May 22 a t the re­
quest of the named plaintiffs, piaintii'fs’ 
counsel were invited to a ttend , and some 
did attend. Gulf was served with proc­
ess May 24. On May 27, before Gulf 
filed responsive pleadings, it filed a two- 
sentence, unsworn request th a t the court 
en ter an order lim iting communications 
by parties and the ir counsel w ith actual 
or [xitcntial class members. The motion 
was accompanied by an unsworn brief 
asserting  th a t Ulysses Gene Thibodeaux, 
one of p la in tiffs ' attorneys, hail recom­
mended to actual and potential class 
members a t  a m eeting th a t they not sign 
receipts and releases sent them  pursuant 
to the conciliation agreem ent. FurtlfCr, 
the brief said th a t it had been rejxirted 
to Gulf th a t Thibodeaux advised the

4. And 29 female employees.



5322 BERN Alii) v. GUL’ OIL CO.

group th a t they should mail hack to Gulf 
checks received pursuant to the concilia­
tion agreem ent because he could recover 
tw ice as much for them by the jx-nding 
suit. Gulf asserted in its brief tha t 
these actions violated standards imposed 
on attorneys by law and by the Canons 
of Ethics. I t asserted th a t an order of 
the court was necessary to prevent fu r­
th e r communication of the type alleged 
and th a t the sta tem ents by p la in tiffs’ 
atto rney  would prejudice its defense of 
the case and the conciliation efforts. In 
its brief Gulf said th a t when the sum ­
mons was served on it approxim ately 452 
of the 54-3 employees entitled  to back 
pay had received checks and executed 
general releases.

On May 2S, a f te r  oral argum ent by the 
parties, D istrict Judge S teger entered a 
tem porary order effective until Chief 
Judge Fisher could re tu rn  and assume 
control and adm inistration of the case. 
His order is substantially  the same as 
paragraph 2 of the modified order, which 
appears as note 9 of the m ajority opin­
ion, th a t is, it contained the restra in ts 
w ithout the exceptions. Judge S teger 
m ade no findings.

On June 8, Gulf filed an unverified 
motion to modify the tem porary order to 
perm it it to resume offering  back pay 
aw ards and to receive receipts and re ­
leases, as provided by the conciliation 
agreem ent. Gulf added, again by an un­
sworn brief attached to its motion, a 
new allegation of misconduct by saying 
th a t it had been reported to Gulf tha t 
Thibodeaux hail recommended to the 
persons a t the m eeting th a t even if an 
employee had signed a receipt and re­
lease he should return  his check to Gulf. 
Gulf also filed an affidav it from EEOC 
sta tin g  th a t it felt the issues in this suit 
were “almost identical” to those em­
braced by the conciliation agreem ent.

P laintiffs filed an unsworn responsive 
brief, squarely raising the constitutional­
ity of the order and the district court’s 
au thority  to issue it. Judge Fisher con­
ducted a hearing on June id and alloai.d  
tim e for additional briefs. With their 
next brief plaintiffs filet! affidavits by 
Thibodeaux, Morrison and Goldstein, cov­
ering several points. Thilxxieaux denied 
th a t he advised [xitcntial class members 
not to accept Gulf’s offer o f settlem ent 
and denied th a t he stated  th a t p la in tiffs’ 
counsel could ge t employees twice as 
much back pay by suit. According to 
the affidavits, none of the lawyers ac­
cepted or exjveeted compensation from 
the mimed plaintiffs or any additional 
named plaintiffs or from memiiers of the 
class; the only an ticipated  comi>ensaLion 
was by a tto rneys’ fees aw arded by the 
court aga inst the defendants, and in the 
case of the LDF attorneys any fees 
aw arded them  would lie paid over to 
LDF. The affidavits also set out th a t it 
was necessary for plaintiffs and the ir 
counsel to com m unicate with members of 
the proposed class to investigate system ­
atic and individual racial discrim ination, 
complete discovery, and define issues in 
the case, and tha t, tiecause of the back 
pav offers made by Gulf under the con­
ciliation agreem ent, it was of crucial im- 
(lortance th a t p la in tiffs’ attorneys be 
able to inform  class members of their 
rights and answ er their questions and 
concerns. In their brief, p lain tiffs as­
serted  th a t many of the issues (specify­
ing several of them) encompassed by the 
suit were not included within the m at­
ters covered by the conciliation agree­
ment.

On June 22, w ithout requiring  Gulf to 
verify its changes of im proper and un­
ethical conduct by Thilxxieaux. and w ith­
out m aking findings of fact, Judge Fish­
e r  entered the modified order. He re-

rr



BERNARD v. GlILF OIL CO. 5523

jected p lain tiffs ' contention th a t the or­
der was constitutionally invalid.

I tu rn  to the contents of the modified 
order. Its o w n in g  language is plenary 
in form. 1 discuss l>eiow the exceptions 
th a t appear fu rthe r on in the order.

The persons enjoined are "all parties 
hereto and their counsel.” 5 

The subject m atte r forbidden is com­
munications "concerning [thisj action 

w ithout the consent and ap ­
proval of the proposed communication 
and proposed addressees by order o f this 
court.” More specific communications 
which the proscription includes, but is 
not limited to, are: (a) solicitation of 
legal representation of potential and. ac­
tual class meml>ors not formal parties; 
(b) solicitation of fees and exjienses; (c) 
solicitation of requests by class members 
to opt out; (d) “communications from 
counsel or a party  which may tend to 
m isrepresent the status, purposes and ef­
fects of the class action, and of any actu­
al or potential Court orders therein 
which may create impressions tending, 
w ithout cause, to reflect adversely on 
any party , any counsel, this Court, or the 
adm inistration of justice.”

The means of communication forbid­
den are “directly or indirectly, orally or 
in w riting .”

The persons with whom communica­
tion is forbidden are potential ami actual 
class members.

The second subparagraph of c (2) sets 
out exceptions as provided in the Munu- 
ar s suggested form; communications be-

3. The m ajority  refe r several tim es to the o r­
d er’s restricting  com m unication by the p a r tie s .  
Elsew here they refer to the  in terests of p la tn -

tween atto rney  and client, ami atto rney  
anti prospective client when initiated by 
the prosjiective client, and communica­
tions in the regular cour-e of business. 
Tile third subparagraph  of *1 (2; i,i the 
“constitutional rig h t” exception:

If any party  or counsel for a party  
asserts a constitutional righ t to com­
m unicate with any m em ber of the 
class w ithout prior restra in t and does 
so communicate pursuan t to th a t as­
serted right, he shall within five days 
a fte r  such communication file with the 
Court a copy of such communication, if 
in w riting, or an accurate and substan­
tially complete sum m ary of the com­
munication if oral.
In the modified order Judge Fisher 

added to the- M anual's proposed form a 
provision that- the clerk mail a notice to 
employees covered by the conciliation 
agreem ent s ta tin g  th a t they had 45 days 
in which to accept Gulf's o ffer and th a t 
all who delivered receipts and releases 
within 55 days would lie deemed to have 
accepted. See 1 (4) and % (9) of the or­
der. In *1 (8) the court restated  the re­
strain ts on communication th a t it had 
imposed in the earlier p art of the order.

On Ju ly  6, pursuant to the “constitu­
tional rig h t” exception, plaintiffs moved 
for permission for themselves and their 
counsel to com municate with members of 
the projiosed class. They attached the 
following notice which they proposed to 
d istribute and asserted th a t they were 
constitutionally entitled  to d istribute it:

t i f f s '  a t to r n e y s  in com m unicating with putative 
class m em bers. The order bars both nam ed 
parties and counsel.



5524 BERNARD v. GUI ' OIL CO.

» p  v e r y  i m p o r t a n t  c i v i l  r i g h t s .  I t  i s  i m p o r t a n t  t h a t  y c u  f u l l y  u n d u e-s ta n d

w h a t  y o u  a r e  g e t t i n g  an r e t u r n  f a r  t h e  r e l e a s e .  _IT t s _  IMFORTAliT m il*  v c t i  ta.LJ 

TO A, LA.O: - ri 3 -.-0?.c. YCV S .G tr .  T h e s e  l a w y e r s  w i l l  tn l f c  t o  y o u  FOP F?EE :

STELLA M. HOREISOtJ 
4 4 0  Aar.C i n  A v e n u e  
Room S16
P o r e  A r t h u r ,  T e x a s  7 7 6 4 0  
( 7 1 3 )  9 0 5 - 9 3 5 9

BAP.RY L. GO LX37EIM
Ul y s s e s  g e n e  t h is c o e a u x

1 0  C o l u s b u s  C i r c L e  
S u i t e  2 0 3 0
New Y o r k .  New York  1 00L 9  
( 2 1 2 )  5 6 6 - 8 3 9 7

CHARLES E.  COTTTN
3 4 8  B a r c n n e  S t r e e t  
S u i t e  5 0 0
New O r l e a n s ,  L o u i s i a n a  7 0 1 1 2  
( 5 0 4 )  5 2 2 - 2 1 3 3

T h e s e  l a w y e r s  r e p r e s e n t  s i x  o f  y o u r  f e l l o w  w o r k e r s  i n  a l a w s u i t  t i t l e d  
B e r n a r d  v .  G u l f . O i l  C o . ,  w h i c h  w a s  f i l e d  i n  B ea u m o n t  F e d e r a l  C o u r t  on  b e h a l f  
o f  a l l  o f  y o u .  T h i s  s u i t  s e e k s  t o  c o r r e c t  f u l l y  t h e  a l l e g e d  d i s c r i m i n a t o r y  
p r a c t i c e s  o f  G u L f .

Even  i f  y o u  h a v e  a l r e a d y  s i g n e d  t h e  r e l e a s e ,  t a l k  t o  a  l a w y e r .  You may  
c o n s u l t  a n o t h e r  a t t o r n e y .  I f  n e c e s s a r y ,  h a v e  h im  c o n t a c t  t h e  above-named 
l a w y e r s  f o r  m o re  d e t a i l s .  ALL d i s c u s s i o n s  w i l l  b e  k e p t  s t r i c t l y  c o n f i d e n t i a l .

ACAIN, IT  I S  IMPORTANT THAT YOU TALK TO A LAWYER. W h a t e v e r  y o u r  d e c i s i o n  
n i g h t  b e .  w e w i l l  c o n t i n u e  t o  v i g o r o u s l y  p r o s e c u t e  t h i s  l a w s u i t  In o r d e r  t o  
c o r r e c t  a l l  t h e  a l l e g e d  d i s c r i m i n a t o r y  p r a c t i c e s  a t  G u l f  O i l .

Plain tiffs alleged in their motion th a t 
neither Gulf’s o ffer to employees nor the 
notice sent by the clerk explained the 
term s of the conciliation agreem ent. 
They asked the court to declare th a l the

notice Wits constitutionally protected. 
They noted th a t under the “constitu tion­
al r ig h t” exception to the order they 
were entitled to d istribu te the notice and 
file it with the court within five days



BERNARD v. ( r 'L F  Oil. CO. 5525

thereafte r. However, Ihjeati.se of what 
they considered to be the vagueness of 
the order, and “for reasons of prudence," 
the plaintiffs asked for the court’s guid­
ance. Their reasons for asking guidance 
w ere not unreasonable. The firs t sul>- 
paragraph  of * (2) of the order required 
th a t any  proposed com munication lie 
presented in w riting for prior approval. 
P aragraph  (3) resta ted  all the restraints. 
The “constitutional r ig h t” exception a[v- 
peared to perm it retrospective filing in 
place of prior court approval. But coun­
sel already charged with unethical and 
illegal conduct cannot be faulted for 
electing not to gam ble on the ir in terpre­
ta tion  of the order or upon the possibili­
ty th a t  if they sent the notice w ithout 
preclearance the court m ight find it not 
constitutionally protected and their as­
sertion of constitutional protection not 
made in good faith.8 As it turned out, 
th e ir  prudence was justified  because the 
court ultim ately denied permission to 
send the notice.

The request for guidance from the 
court, filed .July 6, was appropriate and 
respectful, and it deserved timely court 
action. To be effective the notice th a t 
p la in tiffs proposer! to send needed to lie 
d istributed  promptly. The 45 days for 
acceptance of Gulf’s offer, descrilied in 
the Clerk’s notice, expired on or about 
A ugust 8. The court did not act on 
p la in tiffs’ motion until A ugust 10, when 
it denied the motion by a one-sentence 
order w ithout explanation.

S. S ee  R o d a e r s  v. U n ite d  S ta t e s  S te e l .  508 F.2d 
152. 161 (CA5), c e n .  d e n ie d . 420 U.S. 969. 95 
S.Ct. 1386, 43 L.Ed.2d 649 (1975): "The a tto r­
neys for the plaintiffs, with ap p ropria te  cau ­
tion, declined to test an am biguous o rder by 
violating it and risking con tem pt."

7. The d is tn e t court had not adopted  a local 
rule concerning limiting com m unications in 
class actions. We are. therefore, not con­
cerned w ith rule-m aking pow er but with Ihe

II. Misuse o f  discretion

I Ifelieve th a t the court misused its 
discretion in en tering  the orders in this 
case.7

(1.) Non-compliance with Rule -ZMd)

Rule 23(d) gives the following au thori­
ty to the court:

In the conduct of actions to which this 
rule applies, the court may make ap­
propria te  orders: (3) impos­
ing conditions on the representative 
parties. (Em phasis added.)

This provision, added in 196(5, gives the 
trial court “extensive power” to control 
the conduct of a class action. 7A C. 
W right & A. Miller, Federal Practice and 
Procedure § 1791 (1972). There 'will l>e 
situations in which it will lie “appropri­
a te"  for the court to restrict communica­
tions between counsel and potential class 
members. But, however, broad “appro­
p ria te” may be it is certainly no broader 
than the limits imjiosed by the Constitu­
tion, as discussed in Bart III, below. 
P re term ittin g  constitutional limits, it 
seems to me th a t the d istrict court must 
find th a t restrictions are “appropriate" 
upon a factual showing by the moving 
party  th a t unsujxjrvised communications 
lietween counsel and named plaintiffs on 
one hand and jw tential class mem!>ers on 
the other have materialized into actual 
abuses of the class action device or th a t 
abuses are im m inently threatened." In

au thority  of the  court, inherent o r conferred by 
C ongress through  the Rules, to im pose the Inn- 
it on com m unications. The M a n u a l.  Pt. 2. 
§ 1.41. con tains a suggested local rule, an e a r­
lier version of which w as held invalid in Rodg­
ers v. U n ite d  S ta t e s  S te e l ,  su p ra .

8. The Third Circuit in C o le s  v. M a r sh . 560 F 2d 
186, ISO (CA3). c e r t,  d e n ie d . 434 U.S. 983. 08 
S.Ct. 611, 54 L.Ed.2d 479 (1977), discussed the 
validity of a sim ilar o rder restrain ing  commit-



552S BERNARD v. G U I’ OIL CO.

this case, “appropriateness” was not 
proved and no finding' of “appropriate­
ness” was made by either d istric t judge.

The only arguable grounds I iJerceive 
for the order’s Ijeing “appropriate" are 
the unsworn sta tem en ts by Gulf th a t 
w ere denied by plain tiffs ' a tto rney  under 
oath, the discussions in the Manual of 
possible abuses of class actions, and the 
existence of the conciliation agreem ent 
in the process of implem entation.

W ith respect to the presence of plain­
tiffs ’ counsel a t the m eeting of employ­
ees, it seems to me singularly inappropri­
ate for the district court to rely—if it 
did rely— u[>on Gulf's representations 
th a t Thibodeaux made s ta tem en ts which 
violated lioth the taw and the Canons of 
Ethics. Gulf never presented proof of 
this hearsay. Under oath, Thibodeaux 
denied m aking such sta tem en ts.5

N or should a judicial decision on “a[>- 
propriateness” be rested uj>on the discus­
sions in the Manual. W ith deference to 
the opinions of the distinguished Board

nicalions in term s of th e  d istrict co u rt 's  pow er 
and held it invalid. A lthough I reach the  sam e 
resu lt as the C o le s  court. I think it is prefe ra­
ble to  analyze the question in term s of the 
distric t cou rt's  discretion.

9. In this appeal Gulf resta tes  the hearsay  as 
though it w ere fact proved and  found. Also it 
th row s in this alternative argum ent:

By affidavit, one of the  A ppellants' atto rneys 
adm its to attending the d iscussions, but de­
nies m aking any im proper sta tem ents. 
W hether the sta tem ents, in fact, are  true  is 
im m aterial since the adm itted  appearance  by 
A ppellants' atto rneys a t such a m eeting pro­
vides the potential for abuse of the class 
action process which the M anual and Rule 
23 seeks to prevent.

Br p. 42. Counsel for Gulf trea t m ore lightly 
charging an attorney with unethical and im­
p roper conduct than I would be willing to do.

10. The M a n u a l  cites W eight W a tc h e r s  o f  P h il­
a d e lp h ia  v. W e ig h t  W a tc h e r s  In te r n a tio n a l .  
In c .. 455 F.2d 770 (CA2, 1972). as confirm ing 
an "almost unreview able d isc retion” in trial

of Editors concerning the possibility of 
abuses in class actions, a trial court 
should not merely presume th a t in the 
case before it—indeed in all class actions 
coming liefore it—abuses are i itb. r 
present or threatened.

The order in this case was entered 
pursuant to the authority  given the dis­
tric t court under Rule 23(d). That rule 
rcnuires the d istric t judge to exercise his 
discretion in m aking orders. He is only- 
authorized to make “appropriate orders,” 
and a determ ination of w hat is appropri­
a te  requires the exercise of discretion. 
W hat is appropriate for one case is inap­
propriate in another. If communications 
Ix-lween counsel and actual and potential 
memiiers of a class action were always 
abusive of the class action device then it 
would lie appropriate to autom atically 
en ter an order restric ting  communica­
tions. Such communications, however, in 
many instances serve to e ffec tuate  the 
“purjxises of Rule 23 by encouraging 
common participation in [a lawsuit]."

courts to regulate com m unications betw een 
counsel and active and potential class m em ­
bers. W e ig h t  W a tc h e r *  rests upon the unre- 
vicw ability of d iscretionary  o rders by m anda­
mus. The issue is before us by appeal. In 
R o d g e r s . the Third Circuit said:

[T]he com m ittee which drafted  the M a n u a l  
probably w ent too far in its apparen t a s­
sum ption that C ra ig  v  H a rn e y , [supra, 331 
U.S. 367. [67 S.Ct. 1249,] 91 L.£d. 1546 
(1947)] and B r id g e s  v. C a lifo r n ia , [supra. 314 
U.S. 252, [62 S Ct. 190.] 86 L.Ed. 192 (1941)] 
would perm it the vesting of unreview able 
discretion in a distric t court to im pose a pri­
or re s tra in t on com m unication or associa­
tion. 1 J. Moore, [supra. Federal Practice 
" 1.41. a t 29 n. 28. (2d ed. 1974. P art 2)1. 

508 F 2d a t 165. R o d g e r s  g ran ted  m andam us 
against use of a local rule then appearing  in 
the M a n u a l  and since am ended. I d iscuss in 
Part III, below, the constitu tional lim itations 
im posed by C ra ig  v. H a m e v  and  B r id g e s  v. 
C a lifo rn ia .



BERNARD v. GUL: OIL CO. 5527

Coles v. Marsh, supra a t 189. The deci­
sion w hether to restric t communications 
in a particu lar case, therefore, requires 
an inquiry into the likelihood of abuse 
and the |>otential for tienefiLs. The 
M anual's  general discussion of |x>tcntiul 
abuses flowing from unrestrained com­
m unications is no substitu te  for reasoned 
inquiry into the harms and benefits on 
the particu lar facts of each case. The 
rule requires no less.11 Here, a t  the ap­
pellate level, the m ajority grounds its 
decision on possibilities ra th e r  than actu­
alities. I t refers to w hat the parties 
“may do,” to w hat the trial judge “could 
have easily concluded,” how the order 
“could be helpful” to the judge in exer­
cising his Rule 23 duties, to w hat the 
judge “m ay believe" and of how commu­
nications “may mislead.” This is not the 
s tu f f  of which judicial decisions are 
made.

The final potential justifica tion  for the 
cou rt’s order is the strong  emphasis upon 
se ttlem en t of T itle VII disputes by con­
ciliation ra th e r  than in the courtroom. 
U. S. v. A llegheny-Ludlum  Industries, 
Inc., 517 F.2d 826, 846 (CA5, 1975). But, 
as we noted in Allegheny-Ludlum ,

I I .  In W a ld o  v. L a k e s h o r e  E s ta te s .  In c .. 430 
F.Supp. 782 (E.D.La.. 1977). th e  distric t court 
re jec ted  the claim  that it exceeded its rule- 
m aking au tho rity  under Rule 33 by adopting 
its Local Rule 2.12(e), identical to the M a n u ­
a l ’s suggested  Rule. The court concluded th a t 
" t t jh e  potential abuses a tten d an t upon 
unregulated  com m unication clearly  underm ine 
the  efficacy of the class action  device." Id. at 
794. The local rule was, therefore, consistent 
w ith the Federal Rules of Civil Procedure, the 
stan d ard  for judging the validity of a local 
rule. The difficulty with the  d istric t court's 
analysis is th a t Rule 2.12(e) applies to  every 
case. It does not permit the d istric t judge in 
an individual case the discretion  to not restrict 
com m unications, although in som e ra ses  it 
w ould be inconsistent w ith th e  policies of the 
Federal Rules to restrict com m unication. A

the “ final responsibility for enforce­
m ent of T itle VII is vested with feder­
al courts,” |T]hc various le­
gal remedies for employment, discrim i­
nation are cum ulative and complemen­
tary. From the g rievan t’s standpoint, 
“[ujntler some circumstances, the ad ­
m inistrative route may lie highly pre­
ferred over the litigatory; under o th­
ers the reverse may lie true .”

Id. a t 848 & n.2f> (quoting Alexander  r. 
G nnlner-D envcr Co., 415 U.S. 36. 44 , 94 
S.Ct. 1011, 1017, 39 L.Fid.2d 147. 156 
(1974), and Johnson v. Railw ay Exfiress 
Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 
1716, *1720, 44 L.E<1.2d 295, 302 (1975)). 
In Rotlriguez v. East Texas M olar 
Freight, 505 F.2d 40 (CAS, 1974), vacated 
on other grounds, 431 U.S; 395, 97 S.Ct. 
1891, 52 L.Ed.2d 453 (1977), we com­
mented on the possible divergence of 
governm ental in terests in rem edying em­
ploym ent discrim ination and the in te r­
ests of the individuals who were the vic­
tims of discrimination:

While the G overnm ent may be willing 
to compromise in order to gain 
prom pt, and perhaps nationwide, re­
lief, private plaintiffs, more concerned 
with full compensation for class mem-

refined approach  that does not sw eep so 
broadly that it does aw ay with the  benefits of 
attom ev-ciien t contact and recognizes the  in ­
terests th a t putative class m em bers have in 
receiving com m unications, is called for. The 
need for such an approach w as recognized by 
D istrict Judge Bue in his report accom panying 
the Southern  D istrict of Texas' am endm ents to 
its local ru le restricting  com m unications, dis­
cussed  in fr a . Judge Bue's discussion focuses 
prim arily on constitu tional problem s with the 
M a n u a l 's  rule. A sim ilar need for a narrow  
rule that successfully  guards against abuses 
while not doing aw ay with the benefits of 
com m unication is also required so th a t it does 
not run afoul of Rule 83's m andate that d istrict 
courts adopt only local rules that are co n sist­
ent with i he policies of the Federal Rules.



5528 BERNARD v. G" LF OIL CO.

bers, may be willing: to hold out for 
full restitution.

Id. a t  66. The choice between the law­
suit and accepting Gulf's back pay offer 
and giving a jjenen.il release w;is for 
each black employee to make. The court 
could not make it for him, nor should it 
fre igh t his choice with restrictions th a t 
were not “appropriate” under the cir­
cumstances. Gulf had represented to the 
court th a t the conciliation agreem ent 
was fair and em braced substantially  the 
same issues as the suit. But p la in tiffs’ 
counsel had represented th a t the concil­
iation agreem ent was seriously deficient; 
th a t on its face it neither made the black 
employees whole nor satisfied the dic­
ta tes  of Title VII; tn a t tne relief suj>- 
plied was inadequate because the goals 
were statistically  improper, there was no 
firm  com m itm ent to tim etables, and 
there was no relief from illegal testing. 
P lain tiffs had sot out o ther objections as 
well. According to plaintiffs, the notices 
sen t out by Gulf did not even explain 
how back pay was computed.

The conclusion is inescapable th a t the 
cou rt’s lim itation on com munications was 
intended to fu rth e r em ployees’ accepting 
conciliation aw ards in preference to par­
ticipating  in the suit.12 P re term itting  
w hether a court can ever appropriately 
do this, in this instance it could not, in 
deciding “appropriateness,” elect to fa­
vor conciliation and fru s tra te  or chill the 
righ t of black employees to choose the 
litigation route by cu tting  them off from 
talk ing with the named plain tiffs and 
with the only attorneys who had direct 
expertise about the suit.

The m ajority has failed to take into 
consideration the benefits flowing from 

/•
12- If not o therw ise clear, the c o u rt’s approach 

w as m ade clear by Its direct en try  into the 
conciliation effort (discussed below), and us 
w ithholding action on p lain tiffs’ request for

communication between the parties and 
the potential class members. In racial 
discrim ination cases group solidarity may 
be vital to trigger and to sustain the
willingness to resort to !• ...........
for the removal of dist rim ination, but 
the court order bars black p laintiffs 
from all communication with fellow 
blacks employed by Gulf concerning this 
case. The m ajority also does not give 
weight to the need and desire of poten­
tial class memliers for advice of counsel 
concerning hack pay versus lawsuit- 
The order perm its a potential class mem­
ber to confer with attorneys for plain­
tiffs a t the prosjieetivh class m em ber’s 
request. Pragm atically this is a dubious 
exception. A pmsjiective chess m em ber 
m ust find out who the attorneys are and 
when and where to see them , but the 
actual class members are forbidden to 
give him this inform ation— or any other 
inform ation aliout the case— w ithout pri­
or court approval, nor can counsel fu r­
nish this inform ation to potential class 
members generally.

The wide d isparity  ixttween w hat was 
done here and normal judicial procedures 
is dem onstrated by posing this question; 
“W hat would have hapjiened if Gulf hail 
asked for a temjKirary injunction imjxis- 
ing the exact restrictions th a t were im- 
jxised in this case?” [ believe th a t the 
court would have insisted ujion require­
m ents of notice, tim e limits, proof of 
likelihood of harm , the public in terest 
and sim ilar fam iliar requirem ents, and 
this court would have reviewed an in­
junction under the usual standards, espe-. 
cially since constitutional rights are in­
volved.

(>ermjssion to send th*» proposed notice until
after the tim e had expired for accepting  bark
pay aw ards.



5529BERNARD

The lim itations I s u r e s t  do not dim in­
ish the significance of the |x>tonlial proli- 
lems seen by the draftsm en of the Munu- 
ul and liy the m ajority here. 1 would 
simply re(|uire a showing th a t I lie prol>- 
lems are real and not imaginary.

To the ex ten t the m ajority liases its 
approval of the lower court's orders on 
the premise th a t it is always appropriate 
to restric t communications in class ac­
tions, th a t premise is peculiarly unfound­
ed in this case. The counsel silenced 
w ithout tactual show ing include those 
from the Legal Defense Fund, recog­
nized by the Suprem e Court as having “a 
corporate reputation for expertness in 
p resenting  and argu ing  the difficult 
questions of law th a t frequently  arise in 
civil rights litigation." N A A C I' v. Hut­
ton, 371 U.S. 415 a t 422, 83 S.Ct. 328 a t 
332, 9 L.Ed.2d 405 a t 411-12 (1903). anti 
engaged in “a d iffe ren t m a tte r from the 
oppressive, malicious or avaricious use of 
the legal process for purely private 
gain ." Id. a t 443, 83 S.Ct. at 343, 9 
L.Ed.2d a t 42-1. See a/.so Miller v. 
A m usem ent Enterjiriscs, Inc., I2(i F.2d 
534, 539 n.4 (CA5, 1970).

f— Court  involvem ent in conciliatitm  
A part from the o rd er’s limit on com­

munications, it inappropriately involved 
the court in the extra-judicial concilia­
tion effort. Gulf had mailed out hack 
pay offers liefore suit was filed. In its 
motion to modify Judge S ieger's order. 
Gulf asked the court to direct the clerk 
to sent I notices to all employees who had 
not accepted its o ffer and signed releas­
es. G u lfs theory was th a t the court 
could do this under its power to super­
vise a settlem ent. The court granted  
the motion and extended the tim e for 
acceptance to 55 days from the date of 
the clerk s notice. The hack pay offers 
w ere not offers to se ttle  a lawsuit. The

GULF OIL CO.

nudge given to hlack employees who had 
not accepted Gulf s offer, given under 
the official im prim atur of the . ,l:, t 
not fiermissihle.

I would hold tha t the order was im- 
providently entered under the term s of 
Rule 23(d). Perhaps Rule 23(d) merely 
resta tes an implied power of the court. 
If tha t is so, exercise of the power is 
limited hy the .sam e restra in ts on the 
cou rt’s discretion Unit I have already dis­
cussed. I turn then to constitutional 
lim itations.

III. The constitutionnl issues 
The general rule is th a t otherw ise pro­

tected u tterances concerning the courts 
may lie punished hy contem pt only if 
they jwise "an imminent, not merely a 
likely th rea t to the adm inistration of jus­
tice." Crnifr Harney. 331 U.S. 367, 
376, 67 S.Ct. 1219. 1255. 91 L.Ed. 1546,' 
lo52 (1947). The likelihood must lie 
g rea t th a t a serious evil will result, and 
the evil itself must lie substantial. 
Bridtres v. California. 311 U.S. 252, 260- 
63, 62 S.Ct. 190, 192 94, 86 L.Ed. 192, 
202-03 (1941). Significantly, it is these 
two cases to which the M anual turns in 
addressing constitutional lim itations. Ft.
2, § 141, n.33. Nor does the constitution­
al rule change when applied to law-ycrs, 
even when they participate in the ju d i­
cial process. In re Halkin. — U.S.App.
DC. — , . . . .  F.2d ------, 47 Cr.L-Rep.
2413 (D.C.Cir., Jan . 19, 1979). A law­
y er’s F irst Amendm ent rights to com­
ment about [lending or im m inent litiga­
tion can he proscribed only if his com­
ments jiose a “ ‘serious and im m inent 
th r e a t '” of interference with the fair ad­
m inistration of justice.” (Vi/cage Coun­
cil o f  Lawyers v. Hauer, 522 F.2I 212, 
249 (CA7, 1975), cert, denied, 427 U.S 
912. 96 S.Ct. .3201. 49 L.Ed.21 1204 (1976) 
(quoting In re Oliver, 452 F.2I 111 (CA7,



5530 BERNARD v. GI ' F OIL CO.

1971)); accord, Chase v. Robson. 4:if) F.2d 
1059. 1061 (CAT. 1970); cf. U. S. v. Tijer­
ina, 412 F.2d 661. 666 (CA10), cert, de­
nied, 396 U.S. 990, 90 S.CL 478, 21 
L.Ed.2d 452 (1969) (reasonable likelihorxl 
th a t com ments by crim inal defendants 
will prevent a fair trial ju stifies court 
order prohibiting extrajudicial com­
ments).

In this case the subject m a tte r o f the 
restra in t on counsel's righ t to talk with 
potential class members about the case is 
plenary'. The restra in t is not limited to 
prohibiting solicitation of potential 
clients, discussed below. The attorneys 
may not counsel a  black employee free 
of any e ffo rt to solicit him. The Third 
Circuit, in Rodgers, in holding invalid a 
focal rule th a t contained a sim ilar prohi­
bition on communications Instwccn coun­
sel and potential class mcml>ers 15 did not 
reach the constitutional issue but noted 
the problem:

The imposition of such a condition 
upon access to the Rule 23 procedural 
device certainly raises serious first 
am endm ent issues. See New Jersey  
S ta te  L o ttery  Comm'n v. United 
States, 491 F.2d 219 (3d Cir.), cert, 
g ranted , 417 U.S. 907, 94 S.Ct. 2603, 41 
L.Ed.2d 211 (1974). Then: is no ques­
tion but th a t im portant sjjeech and as- 
sociationa! rights are involved in this 
e ffo rt by the NAACP Legal Defense 
and Education Fund, Inc. to communi­
cate with ]>otential black class mem­
bers on whose behalf they seek to liti­
gate  issues of racial discrimination. 
See, e. g.. United Transfiortation Un­
ion v. S ta te  Bar, 401 U.S. 576, 91 S.Ct. 
1076, 28 L.Ed.2d 339 (1971); N A A C P  
v. Button, 371 U.S. 415, 83 S.Ct. 328. 9 
L.Ed.2d 405 (1963). And the in terest

13. The local rule in issue in R o d g e r s  did not 
include the "constitu tional righ t"  exception 
w hich has been added to the suggested  form in

of the judiciary in the proper adm inis­
tration  of justice does not authorize 
any blanket exception to the first 
am endm ent. See  Wood v. Georgia, 
370 U.S. 375. 82 S.CL 1.161. 8 L.Kd.2d 
569 (1962); Craig v. Harney, 331 U.S. 
367. 67 S.Ct. 1249, 91 L.Ed. 1546 
(1947); Pennekam p  e. Florida, 328 
U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 
(1946); Bridges v. California, 314 U.S. 
252. 62 S.Ct. 190, 86 L.Ed. 192 (1941). 
W hatever may lie the lim its of a 
court’s powers in this respect, it seems 
clear th a t they diminish in s treng th  as 
the expressions and associations sought 
to lie controlled move from the court­
room to the outside world. See  T. 
Emerson, The System of Freedom of 
Expression 449 e t seq. (1970).

508 F.2d a t 162-63.
N ext I tu rn  from the general restra in t 

on the alto rney  to the s[>ccific restriction 
against solicitation in subparagraph (a) 
of * 2 of the order: “[Sjolicitation d irect­
ly or indirectly of legal representation  of 
potential and actual class members who 
are not formal parties to the class ac­
tion.” N A A C P  v. Button, 371 U.S. 415, 
83 S.Ct. 328, 9 L. Ed .2*1 405 (1963), and its 
progeny. In re Primus, 436 U.S. 412, 98 
S.CL 1893, 56 L.E*i.2d 417 (1978), United 
Transjx>rtution Union v. S ta te  Bar o f  
Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 
L.Ed.2d 339 (1971). United Mine Workers 
v. Illinois Bar Ass ’n, 389 U.S. 217, 88 
S.CL 353, 19 L.Ed.2d 426 (1967), and 
Raiim ad Trainmen  v. Virginia S ta te  Bar, 
377 U.S. 1, 84 S.CL 1113. 12 L.Ed.2d 89 
(1964), m andate the conclusion th a t sulv-^ 
paragraph (a) is unconstitutional. In 
Button. the Court concluded th a t 
NAACP solicitation of persons to bring

the  M .m u a l. I d iscuss below (hat this does not 
rem ove the constitu tional issue.



IIE1LNAUI) g u l f  OIL CO.

civil rights suits was protected activity 
under the F irst and Fourteenth  am end­
ments. 371 U.S. at 428-29, .83 S.Ct. a t 
333, 9 L.F!d.2d a t 415.u The solicitation 
was treated  as a mode of political ex­
pression effectuated  through group ac­
tiv ity  falling within the sphere of associ- 
ational rights guaranteed liy the F irst 
Am endm ent. The solicitation activities 
considered in B utton  included holding 
m eetings to explain legal steps needed to 
achieve desegregation. A t these m eet­
ings forms were circulated which autho­
rized LDF attorneys " to  represen t the 
signers in legal proceedings to achieve 
desegregation.” 371 U.S. a t 421, 83 S Ct 
a t 332, 9 L.Ed.2d at. 111.

In view of Gulf’s s ta tem en ts to the 
trial court and the countering  affidavit 
by plaintiffs attorney, we do not know 
w hether there has been express solicita­
tion in this case sim ilar to the distribu­
tion of forms in Button.'*  W hether 
plaintiffs atto rneys' a ttendance a t the 
m eeting was solicitation is not determ i­
native. Here, as in Button, the subject 
m a tte r  is racial discrim ination. Plain­
tiffs attorneys arc already engaged on 
behalf of black employees in seeking to 
vindicate the ir civil rights through court 
action, while in B utton  they were seek­
ing clients to begin a suit. In both cases 
the activities a t  issue are those of. LDF 
lawyers. The only m aterial difference is 
th a t here employees m ust choose I**- 
tw een the lawsuit and a conciliation of-

14. Because this case involves a restriction im­
posed by a federal court, the  Fourteenth 
A m endm ent is not im plicated.

15. The notice th a t plaintiffs asked leave to 
send does not explicitly solicit persons to en­
gage p laintiffs' a tto rneys or to  join in the class 
but urges em ployees to seek legal advice and 
to become informed. It tells em ployees that 
plaintiffs a tto rneys will talk tn them  'without 
charge, suggests as an a lternative  talking to 
som e o ther atto rney , and em phasizes th a t the 
class action will proceed. No one is expresslv

5531

for while in Button  there had lx_xm no 
conciliation anti offer. The people a t ­
tending the m eetings held by the LDF 
lawyers in Button,  however, did have to 
choose between in itialing  a lawsuit and 
not participating  in a lawsuit. The tyjar 
of choice the people would have to make 
here and in Button  is not so d iffe ren t 
th a t the solicitation th a t could have oc­
curred in this case was outside the scope 
of activity  protected by Button. The 
characteristics of the solicitation tha t 
brought it within constitutional protec­
tion in B utton  are equally present in this 
case.

The continued vitality of B utton  was 
recently affirm ed by the Suprem e Court 
in In rc Primus, supra. There the Court 
reversed a  disciplinary reprim and issued 
against an ACLU lawyer for solicitation, 
436 U.S. a t  419. 98 S.Ct. a t  1899, 56 
L.Ed.2d a t 427. The Court considered 
the economic relationship lietween the 
lawyer and the person solicited, the pur­
pose of the litigation and the jnissibility 
of a  conflict of in terest between counsel 
and prosj>ective clienl. Because the law­
yer had no direct financial stake in the 
case, the case was a means of expressing 
a political lielief, and there was no evi­
dence of overreaching or m isrepresenta­
tion, the C ourt concluded th a t South 
Carolina’s punishm ent of Primus for so­
licitation violated her First Am endm ent 
righ ts.1*

urged to join the class, reject a release, or 
retu rn  a check.

16. O h r n l ik  r. O h io  S t a t e  l ia r  A s s  n . 4.1G U«S 
447. 98 S.Ct. 1912. 5ti L.t;d.2d 444 (I07H). de­
cided the sam e day as P r im u s , sustained, 
against constitu tional objections, b a r sanctions 
ot an a tto rn ey  for solicitation. For purely pe­
cuniary  gain he visited in the hospital a person 
injured in an autom obile accident and solicited 
her as a client. No political expression or as- 
sociationai righ ts or vindication of illegal racial



5332 BERNAL') v. GULF OIL CO.

Because the activity prohibited by sul>- 
paragraph (a) of the d istric t court’s or­
der is constitutionally protected activity 
it is necessary to consider w hether there 
is a comiiclling governm ent in te rest th a t 
justifies the prohibition and w hether the 
means used are sufficiently s|>ecific ‘“ to 
avoid unnecessary abridgm ent of nssocia- 
tional freedom s.’ ” Id. 436 U.S. a t 132, 
98 S.CL a t 1905, 56 L .E d 3 l a t 134-35 
(quoting Buckley  v. Valeo, 424 U.S. 1, 25, 
96 S.Ct. 612, 637, 46 L.Ed.2d 659, 691 
(1976)). The Primus Court recognized 
th a t “the prevention of undue influence, 
overreaching, m isrepresentation, invasion 
of privacy conflict of in terest, [and] lay 
in terference”. 436 U.S. a t  432. 98 S.Ct. a t 
1905, 56 L.Ed.2d a t 435, are evils the 
s ta te  may guard against and th a t these 
problems sometimes resu lt from lawyer 
solicitation of clients. The Court w ent 
on to sta te , however, th a t prophylactic

disenm inauon  w as involved. Ohralik based 
his constitu tional claim  solely on the com m er­
cial speech doctrine. See a ls o  P a c e  v. F lorida . 
368 So.2d 340 (F la .Sup .1979); A d le r .  B a n s h .  
D a n ie ls . Levin & C r c s k o f f  v. E p s te in .  393 A -2d 
1175 (P enn .Sup .1978).

17. As sta ted  by the  fhamus C ourt
Rights of political expression  and associa­

tion m ay not he abridged because of sta te  
in terests asserted  by appellate  counsel w ith­
out substan tial support in th e  record or find­
ings of the s ta te  court. See F irs t N a tio n a l  
B a n k  o f  B o s to n  v. B e llo tt i .  435 U.S. 765. 789. 
98 S.CL 1407. (1423.J 55 L.F.d.2d 707 (1978); 
U n ite d  T r a n s p o r ta t io n  U n io n  v. M ic h ig a n  
B ar. 401 U.S., at 581, 91 S.Ct. 1076 [. at 
1080) 28 L.Ed.2d 339; S h e r h e r t  v. Vemer, 
374 U.S. 398. 407, 83 S.Ct. 1790. [1795.1 10 
I-.Ed.2d 965 (1963); B u t to n .  371 U.S. a t 442- 
443. 83 S.CL 328 [. a t 342 343], 9. L.Ed.2d 
405; W o o d  v. G e o rg ia . 370 U.S. 375. 388, 82 
S.Ct. 1364, [1371,| 8 L.Ed.2d 509 (1962); 
T h o m a s  v. C o llin s . 323 U.S. 516, 530. 53G, 65 
S.Ct. 315 [322. 325,1 89 I.E d . 430 (1945). 

436 U.S. a t 434 n. 27, 98 S.CL a t 1906 n. 27. 56 
l_£d.2d a t  436 n. 27

18. S ubparagraph (b) of " 2 of tile o rder forbids 
solicitation of fees and expenses despite the 
affidavit setting  out th a t the NAACP provides

rules intended to guard against such 
evils are not permissible when aimed 
against constitutionally protected forms 
of solicitation liecause of their impact on 
F irst Amendmenl rights. hi. When 
dealing witli B utton -lyi*s solicitation, as 
opjHised to commercial form s of solicita­
tion, see Ohnilik v. Ohio S ta te  Bar Asso­
ciation. 436 U.S. 447, 98 S.Ct. 1912, 56 
L.Ed.2d 444 (1978), discussed in note 16, 
supra, there must l>e a showing th a t the 
solicitation “ in fact involved the tyqxj of 
misconduct” 56 L.Ed.2d a t  436, th a t may 
be constitutionally guarded against. A 
showing of potential danger does not 
suffice.17 The lower court made no find­
ings w hether the substantive evils the 
court was constitutionally entitled  to 
guard against had occurred. W ithout 
such findings subparagraph (a) of the 
order cannot stand .1*

its services free of charge. A rguably th is hy­
pothetical restrain t does no injury except to 
the  exten t it adds to the  overall chilling effecL 
However, I think it Is ap p ropria te  to com m ent 
on it since it is part of the M a n u a l  s form. In 
U n ite d  T r a n s p o r ta t io n  U n io n  v. S ta t e  B a r  o f  
M ic h ig a n , s u p ra , the Suprem e C ourt in te rp re t­
ed B u t to n  and cases follow ing it to stand for 
the  proposition that "collective activity  under­
taken to obtain m eaningful access to the 
courts is a fundam ental right w ithin the pro­
tection of the First A m endm ent." Id. 401 U.S 
at 585, 91 S.CL a t 1082. 28 L.Ed.2d at .347. In 
at least som e situations the collection or solici­
tation of funds to defray litigation costs is a 
necessary  adjunct to obtaining m eaningful ac ­
cess to the courts. I would, therefore, give 
such activity  constitu tional protection in ap­
propriate cases. The degree of protection 
would vary  according to  the  use to which the 
funds are to  be put. If they  are  to be used to 
pay law yers, the solicitation p resen t?  som e of 
the  dangers recognized in P n m u s  and O h r a l ik  
th a t a sta te  or court m ay properly guard 
against. If the  funds are  to be used to defray 
litigation expenses, the  solicitation is closer to 
the heart of gam ing access to  the courts. S e e  
N o r r is  v. C o lo n ia l C o m m e r c ia l  C o rp ., 77 F.R.D. 
672, 673 (S.D.Oiiio, 1977) (solicitation of funds



B E R N A R D  v. ( , :  ! . r  O IL  CO. r,r,n:i
Subparagraph (d) of 1 2 is applicable 

to this case and is in my view facially 
unconstitutional. It is narrow er than 
the plenary proscription in the first sen­
tence oi the order, which prohibits all 
communications concerning the suit. 
Subparagraph (d) prohibits w hat might 
be called “objectionable communica­
tions. It prohibits all communications 
“ which m ay lend  to m isrepresent [the 
class action] and
which may create impressions tending, 
w ithout cause to reflect adversely on any 
party , any counsel, this Court or the ad­
m inistration of justice .” ( Emphasis add­
ed.) Tile order is overbroad because it is 
not limited to the clear and present dan­
g er test. “May tend to m isrepresent," 
and “may create impressions" are not 
enough to ju stify  suppression of protect­
ed speech. See  Chicago Council o f  Law ­
ye rs  v. Bauer, supra a t 2-19. Also, while 
speech th a t poses an im m inent th rea t to 
the fa ir adm inistration of justice may lie 
properly prohibited, sjicech tha t reflects 
adversely on any party  or counsel may 
not. The only interests to which the 
F irs t Am endm ent may lie subordinated 
are compelling governm ent interests. 
The governm ent has no com |ielling in te r­
est in assuring th a t nothing un fla ttering  
will he said about Gulf or its attorneys.

I t  seems to me unnecessary to dwell at 
length on the vagueness of the order, 
particularly  subparagraph (d). In advis­
ing a [xitential class m em ber of the rela­
tive merits of class action versus back 
pay offered under the conciliation award, 
counsel will almost inevitably sav some-

to defray litiuatinn expenses of c lass action 
perm itted  w ith certain  requ irem ents im posed 
on the content of the solicitation letter). See 
a ls o  S a y r e  v. A b r a h a m  L in c o ln  Federal S av­
ings & L o a n  A s s n .  A3 F.R.D 379. 384 «6 (F..D. 
Penn.. 1074). modified, tin F.R.D. 117 (1073).

S ubparagraph  ic) of •' 2. relating (o solicita­
tion of "op t ou t"  requests, s te m s  to me to

tiling th a t will lx- construed to reflect 
upon Gulf’s o ffe r—indeed th a t is a t the 
heart of this whole m atte r of lawsuit 
versus settlem ent. If n w n  I goes to ur. 
employees' m eeting at all,”  the only ,ai,.- 
advice to him is to remain mule.

In a thoughtful analysis of the consti­
tutional issues involved in this case. Dis­
tric t Judge Boyle, m IVa/i/o c. Lakcnhorv 
/‘-states, Inc., U’dS F.Supp. 7X2 (E.D.La., 
1977), rejected a constitutional attack  on 
his d istrict's Isx-al Rule 2.12(e) which is 
identical to the Manual \s suggested rule. 
Tiie court recognized that its rule

restricts not only certain  expressions 
by parties and counsel, but also im­
pinges u|x>n the constitutionally-de­
rived in terest of t.he recipient/*) to se­
cure tiie communication.
Likewise limited by the rule's opera­
tion is the opportunity of the p la in tiff 
organization to com municate concern­
ing legal redress with those memiiers 
who are not formal parties to the suit, 
which activity  ordinarily would be en ­
tailed in the freedom of association 
and the collective right of an organiza­
tional membership to achieve effective 
judicial access.

Id. a t  787 (citations and footnote om it­
ted). The court then went on to ca ta­
logue the interests served by the Local 
Rule: (1) prohibition of solicitation of 
representation or funds protects laymen 
from unscrupulous attorneys anil helps 
preserve tiie legal profession’s image; (2) 
preservation of the court’s obligation “ to 
direct tiie ‘best notice practicable’ to

have no application to this case. It applies 
only to Rule 23(h)(3) class actions, and this 
action w as brought pursuan t lo 23(bi(2>.

19. A ssum ing m erely being there is not "ind i­
rect com m unication '' as tiu lf would seem  to 
contend, see  n. 9. s u r r a .



5534 BERNARD v. Gl \ F  OIL CO.

class members, advising them of their 
privilege to exclude them selves from  the 
class,” id. a t 790, pu rsuan t to Rule 
23(c)(2) for class actions brought under 
Rule 23(b)(3); and (3) the adm inistration 
of justice by preventing m isrepresenta­
tions. Id. a t 790—91. The court found 
these objectives sufficiently im portant to 
override the inhibitions on F irst Amend­
m ent rights and th a t the rule is the least 
drastic alternative.

I have several problems with the dis­
tr ic t court’s analysis. F irst, the three 
categories of interests served by the rule 
can be tied to the specific prohibitions. 
The court does not explain how the ple- 
nary prohibition against all communica­
tions absent prior approval serves the 
specified goals o ther than to note tha t 
‘the ingenuity of those determ ined to 
wrongly take advantage of the class ac­
tion procedure would likely prevail over 
any a ttem p t a t  prohibition by
item ization.” Id. a t 791-92. I think the 
plenary prohibition in the firs t sentence 
of " 2 of the order is facially overbroad. 
Communications th a t do not threaten  
any of the interests enum erated  by the 
court are prohibited. When dealing with 
F irst A m endm ent rights, g rea te r  speci­
ficity is required.

D istrict Judge Bue of the Southern 
D istrict of Texas reached the same con­
clusion as I reach in his analysis of the 
am endm ents his d istrict adopted to the 
M anual's  suggested rule. The Southern 
D istrict’s rule contains only the specific 
prohibitions, dropping the across-the- 
board restra in ts. The prim ary reason 
for the change was to avoid a  violation 
of the F irst A m endm ent by overbreadth: 
“The key to a constitutional rule which 
regulates class communication is to nar­
row down those instances in which a pri­
or res tra in t is im;x>sed to those in which 
the types of communications subject to

judicial review before dissemination are 
clearly defined and clearly capable of 
Rule 23 abuse.” Bue, A nalysis o f  Pro­
posed Revision o f  Loon/ Rule 6 o f  the 
Uni Lei i S ta tes District Court for tile 
Southern District o f  Texas, (quoted in 
Bulletin. Manual for Complex Litigation, 
Federal Judicial Center, 9-10 (Aug. 25 
1973)).

Also, Waldo fails to distinguish be­
tw een commercial forms of solicitation 
and Button  -type solicitation. The sig­
nificance of this distinction has already 
!>een discussed. Because the rule does 
not make this distinction, its prohibition 
on solicitation is overbroad. The govern­
m ent interests th a t may legitim ately lx? 
protected by prohibiting commercial so­
licitation do not usually need to l>e pro­
tected when Button  -tyjx? solicitation is 
involved because it does not pose the 
sam e dangers as commercial solicitation. 
Moreover, the constitutional scrutiny 
given to a  ban on commercial solicitation 
or punishm ent for engaging in such so­
licitation is significantly lower than the 
scrutiny given prohibitions on Button- 
type  solicitation. Commercial solicita­
tion is protected only by the commercial 
speech doctrine, which requires a lower 
level of scrutiny than required when 
there is an in fringem ent of the constitu­
tional righ ts of association and political 
expression which <x?curs when Button- 
type  solicitation is prohibited. Compare 
In re Primus, supra, with Ohralik v. Ohio 
S ta te  Bar .Association, supra.

The Waldo court’s concern with pro­
tecting  the adm inistration o f justice 
from m isrepresentations of cases pending 
before it is legitim ate. But the “reason­
able likelihood” standard  incorporated in 
the rule simply fails to comply with con­
stitu tional standards.

The proviso perm itting  post-distribu­
tion filing of a notice thought to lx? con­
stitu tionally  protected is not a cure.



BERNARD GULF OIL CO. 5535
“This provision does not elim inate— in­
deed it highlights— the overbreadth and 
resu ltan t chilling effect of the [Afanua/’s] 
proposed rule.” Comment, 88 Harv.L. 
Rev. 1911, V.)Z> n. 74 (1975). The major­
ity ’s conclusion th a t the assertion of a 
good faith belief gives total protection is 
disingenuous. The d istric t court would 
still be entitled to inquire into the bona 
fides of counsel s belief.*® Because coun­
sel may be called upon to establish the 
basis for his good faith t>eliof, and there­
fore is pu t a t  risk for possibly violating 
the court’s order, the good faith exce;>- 
tion does not am eliorate the chilling ef­
fect of the order. It is little  com fort for 
a conscientious atto rney  to lie told that 
he may com municate with jxitenlial class 
memi>ers but th a t a t  a la te r tim e may be 
called upon by the court to ju stify  the 
communication.*’ Even if facially a 
cure, the constitutional exception is no 
cure as applied to these p lain tiffs who 
prudently  asked for pre-distribution ap­
proval of the leaflet reproduced al>ove 
ra th e r than risk [x>st-di.strihution filing 
and were given a M a te d  denial.

20. Although Screw s U. S .. 32.') U S 91. (15 
S.Ct. 1031. 89 L.Ed. 1495 (1945). probably re­
quires a show ing of specific intent to violate 
the  co u rt’s order, that is certa in ly  not the  total 
p ro tection  from punishm ent envisioned by the 
m ajority: indeed, it indicates that assertion  of 
good faith  is not total protection.

21. The m ajority  argues th a t " (o |nce  plaintiffs
subm itted  the proposed com m unication to the 
d istric t judge the  exem ption  for
com m unications they asserted  w ere constitu ­
tionally p ro tected  was no longer relevan t.’* 
The issue before the  d istrict court on n motion 
for jrermission to d istribute would be w hether 
the proposed com m unication is constitu tional­
ly protected, but the issue on tins appeal is the 
constitu tionality  vel non of the o rder In our 
exam ination of this issue, the constitu tional 
exception provision is certain ly  relevant: in ­
deed the unw illingness of the a tto rn ey s to rely 
on the exception in distributing  the  leaflet 
dem onstra tes the  o rder's chilling effect. It is 
the  proof of the jiuddirig. Having lost on their

[ V. G  inclusion
The district court misused its discre­

tion under Rule 23M) and violated lit. 
constitutional right:; ..I p la in tiffs ' i i .uu 
sel, named plaintiffs and ail o the r actual 
or potential memlierx of the class by en­
te ring  the orders. I dissent from P art 
IV of the m ajority opinion and woulti 
vacate the d istrict court’s o rder as modi­
fied.

JA M ES C. HILL, Circuit .Judge, spe­
cially concurring:

Being bound by the prior decisions of 
this Court, as I ought to lx:, I concur. 
B ckcr P hosph ite  Corj>. v. Muirhcaii, 581 
F.2il 1187, 1190 n. 10 (5th Cir. 1978).

My observations concerning the path 
u[>on which we em barked in Zam huto v. 
Am erican Telephone anil Telegraph Co., 
544 F.2d 1333 (5th Cir. 1977) are set out 
in my dissent to the opinion for the En 
Banc Court in W hite v. Dallas Indeften- 
ilent School District, 581 F.2d 556, 563 
(5th Cir. 1978) (Hill, concurring in 
p art and dissenting in part).

m otion to  have the o rder restrain ing  their 
com m unications declared unconstitu tional, the 
reasonable— and respectful— co urse  for them  
to follow w as to ask the co u rt’s guidance be­
fore d istributing  the leaflet ra th e r  than  take 
their chances under the  constitu tional excep­
tion. I assum e that the  m ajority  does not 
m ean that had the plaintiffs specifically re­
new ed their constitu tional objection to the  o r­
der a t the tim e they requested  perm ission to 
d istribu te  the leaflet the chilling effect of the 
o rder could not have been considered by the 
distric t court. Such a position would be un ­
tenable It is not necessary  to disobey a court 
o rder to be able to  m ake a chilling effect a t­
tack  on it. Indeed, the exact opposite is nor­
mally required. A party  may not violate a 
court o rder and then in a con tem pt proceeding 
tor violating the  o rder challenge its constitu ­
tionality W a lk e r  v. C i t y  o f  U in u in x lu tm ,  388 
U.S. 307. 316-17, 87 S.Ct. 1824, 1830. 18 
L.Ed.2d 1210. 1217 (1967).

Adni. Office, If.S. Courts - West Publish ing Company, Saint Paul. Minn.



CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of June, 1979, 

copies of the foregoing Petition for Rehearing and Suggestion 

for Rehearing En Banc were served on the following attorneys 

by United States mail, postage prepaid, addressed to:

William G. Duck, Esq.
P.0. Box 3725
Houston, Texas 77001

Carl Parker, Esq.
440 Stadium Road
Port Arthur, Texas 77640

William H. Ng, Esq.
Equal Employment Opportunity 

Commission
2401 E Street, N.W.
Washington, D.C. 20506

Attorney for Plaintiffs-Appellants