Memphis Fire Department v. Stotts Brief in Opposition

    Nos. 82-206 and 82-229

1 st t h e

Olmtrt at %  little BtaUs
O ctober T erm , 1982

M em ph is  F ire D epartm ent  and 
F irefighters L ocal U nion N o. 1784,

Petitioners,
v.

Carl  W . S totts, et at.,
Respondents.

ON P E T IT IO N  FOR W R IT  OF CERTIORARI 
TO T H E  U N IT E D  STATES COURT OF APPEALS 

FOR T H E  S IX T H  C IR C U IT

BRIEF IN OPPOSITION

T homas. M. D a n ie l*
R ichard B. F ields 
Cox & F ields 

707 Adams
Memphis, Tennessee 38105 
(901) 525-8601

J ack  Greenberg 
O. P eter S herwood 
Clyde E . M u rph y  
R onald L. E llis 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents
*  Counsel of Record



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................ i

STATEMENT OF THE CASE ....................... 1

ARGUMENT: REASONS FOR DENYING THE WRIT .. 8

I. The Decision of The Sixth 
Circuit, Modifying the Consent 
Decree Is Consistent With The 
Decisions Of This Court And
Other Circuits ................  8

II. The Decision Of The Court Of
Appeals Is Supportive Of The 
Congressional Policy Encouraging 
Settlement In Employment 
Discrimination Litigation ........ 14

CONCLUSION 17



TABLE OF AUTHORITIES

C a s e s : Page

American Tobacco Co. v.
Patterson, 102 S.Ct.
1334 (1982) ........................ 12

Boston Chapter NAACP v.
Beecher, 679 F.2d 965 
(1st Cir. 1982), c e r t .
pending .......................... .. 9

Brown v. Neeb, 644 F.2d
551 (6th Cir. 1981) ..... . 9

California Brewers Ass'n v.
Bryant, 444 U.S. 598
(1980) ............................ . 12

City of Chattanooga v.
Chattanooga Firefighters 
Assn. Local 820 ___  S.W.
2d ___  (Tenn. App. 1980) .......  7

Eaton v. Courtaulds of North 
America, Inc., 578 F.2d
87, 91 (5th Cir. 1978) ..........  16

EEOC v. Plumbers & Pipefitters,
Local 189, 438 F.2d 408
(6th Cir. 1971) ................... 11

Ford Motor Co. v. Huffman,
345 U.S. 330 (193) .......... . 10

Franks v. Bowman Transportation
Company, 424 U.S. 747 (1976) ... 9,12

Fullenwider v. Firefighters 
Association Local Union 
1784, ____ S.W.2d ___
(Tenn. App. 1981) ................  7

i



C a s e s : Page

Jackson Transit Authority v.
Local 1285, 50 U.S.L.W.
4603 fJune 7, 1982) ............ 7

King Seely Thermos Company v.
Alladin Industries, Inc.,
418 F .2d 31 (2d Cir. 1969) ..... 11

Morgan v. O'Bryant, 671 F .2d 23 
(1st Cir. 1982), c e r t .
denied, U.S. ........... 9,13

Pullman-Standard v. Sw in t,
102 S.Ct. 1781 (1982) .......... 12

Roberts v. St. Regis, 653 F .2d
166, 172 (5th Cir. 1981) ....... 15

Tangren v. Wackenhut Services,
Inc., 658 F .2d 705 (9th 
Cir. 1981), cert, denied 
50 U.S.L.W. 3802 (April
5, 1982) .......     . 10

Teamsters v. United States,
431 U.S. 324 (1977) ......... . 12

U.S. & Armer v« Memphis Light,
Gas & Water Division (MLGW),
Civil Action Nos. C-74-286,
74-17 (W.D. Tenn.) ......  ... 17

United States v. Hall,
472 F .2d 261 (5th Cir. 1972) ... 11

United States v. ITT Continental 
Baking Co., 420 U.S. 223,
238 (1975) ..................... 16

i i



C a s e s : Page

United States v. Swift &
Company, 286 U.S. 106
(1932) .............................. 11,16

United States v. United Shoe 
Machinery Company, 391 
U.S. 244, 252 (1968) ....... . 1 1

United Steelworkers of 
America v. Weber,
443 U.S. 193 (1981) ____....... 13

Zipes v. Trans World Airlines,
50 U.S.L.W. 7238 (Feb.
24, 1982) ......................... 12

Statutes:

42 U.S.C. §2000e et seq.,.Title VII 
of the Civil Rights Act of 1964, 
as amended .......................... 9,11,14

iii



IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1982 

Nos. 82-206 and 82-229

MEMPHIS FIRE DEPARTMENT and 
FIREFIGHTERS LOCAL UNION NO. 1784,

Petitioners,

v.

CARL. W. STOTTS, et a l . ,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

STATEMENT OF THE CASE 

This case presents questions concerning 

the modifification of a consent decree in an 

employment discrimination lawsuit.



- 2

In 1977, respondent Carl W. Stotts filed

a class ac ti on lawsuit against the City of

Memphis, alleging that the Fire Department's

hiring and promotion policies were racially

d i s c r i m i n a t o r y .  F o ll ow in g three years of

discovery and negotiations, the lawsuit was

sett le d by the e n tr y of a consent decree.

The consent de cr ee was agreed to by a

class of black employees of the Memphis Fire

Department and the City of Memphis and

a p p r o v e d  by the d i s t r i c t  court on May 27,

1980. The express p u r p o s e  of the consent

d e cr ee was "to re me dy the past hiring and

p r o m o t i o n  p r a c t i c e s  of th e M e m p h i s  F i r e

Department with respect to the employment of
, 1/

blacks a n d [to] c o nt in ue [i n g ] the efforts

1/ Petitioners correctly state that there 
was no finding of liability on the part of the 
Memphis Fire Department in the consent decree. 
They fail to note, however, that the undis­
puted statistical evidence before the district 
court created such a strong prima facie case 
of racial discrimination that the court took 
judicial notice of the discriminatory prac-



3

ma de by the Ci ty in hi ri ng and p r o m o t i o n s

under the consent d e cr ee ente re d in CA-74 

2/ 3/
-2 86 ."—  a . 64.~  In order to acco mp li sh

\J continued

tices of the City. A. 21. See also A. 9-11, 
70-71 for hiring and promotional statistics 
showing that blacks remained seriously under­
represented in job classifications above the 
rank of p r i v a t e  in 1981. Al so before the 
court were depositions of black firefighters 
d e t a i l i n g  ot he r d i s c r i m i n a t o r y  e m p l oy me nt 
practices in disciplinary treatment, training 
o p p o r t u n i t i e s ,  and station s e gr eg at io n by 
ra ce.

2/ In 1974 the City of Memphis and the U.S. 
Department of 'Justice entered into a consent 
decree resolving issues raised in a lawsuit 
which had alleged discrimination on the basis 
of race and sex in hiring and promotion within 
the various divisions of city government. In 
this decree the City committed itself to an 
interim goal of filling at least fifty percent 
(50%) of all vacancies with qualified black 
applicants and meeting exactly the same long 
term goal of achieving a proportional represen­
tation of blacks in each job classification as 
in the 1980 decree.

3/ "A." refers to the appendix filed by the
petitioner Firefighters Local Union No. 1784 
in No. 82-206. We are filing a consolidated 
brief in opposition to certiorari pursuant to 
the Clerk's approval in his letter dated 
A u gu st 30, 1982. We, therefore, will only
re fe r to the appe nd ix filed in No. 82-206 
unless otherwise noted.



4

this purpose the Fire Department agreed inter 

alia to the long term goals of "rais [ing ] 

the black representation in each job classifi­

c a t i o n  in the f i r e  d e p a r t m e n t  to l e v e l s  

a p p r o x i m a t i n g  the black p r o p o r t i o n  of the 

civilian labor force in Shelby County." A. 

64. Moreover, the district court expressly 

retained jurisdiction of the case "for such 

further orders as may be necessary or appro­

pr i a t e  to e f f e c t u a t e  the p u r p o s e s  of this 

decree." A. 69.

In April of 1981, the City experienced an 

unanticipated economic crisis that required 

layoffs and demotions in city departments. A 

layoff policy was formulated that provided: 

(1) the Mayor of Memphis had absolute discre­

tion in a p p r o v i n g  or not ap pr ov in g the job 

classification to be eliminated; (2) affected 

employees in these job classifications were to 

be laid off or reduced in rank according to 

th ei r ci ty -w id e seniority; (3) under the



5

the policy certain employees whose positions 

were being el i m i n a t e d  p o s s e s s e d  "bumping" 

rights wh er eb y em pl oy ee s with su fficient 

seniority could choose to temporarily assume a 

lower ranking p o s i t i o n  rather than go on 

layoff status, and (4) excess employees who 

had been "bumped" could exercise their senior­

ity resulting in the least senior employees 

b e i n g  l a i d  off. It is u n d i s p u t e d  t h a t  

"the application of the layoff policy to the 

[Fire Department] job classifications selected 

by the City would have virtually destroyed the

progress belatedly achieved through affirmative
,,4/

action."—  a . 32.

After respondents applied for and were 

gr an te d a t e m p o r a r y  r e st ra in in g or de r re-

47 For example, both courts below found that 
approximately 55% of black lieutenants and 46% 
of black drivers would either have been laid 
off or demoted if the City's layoff policy was 
applied. A. 9. These were the job classifica­
tions where blacks had made recent gains after 
years of virt ua l exclusion. See A. 9 — 11, 
37.



6

straining the City from laying off or reduc­

ing in rank any black employee in the Memphis 

Fire Department, the district court held an 

evidentiary hearing and enjoined the City in 

or de rs issued on May 8, 1981, and 'June 24, 

1981, from i m p l e m e n t i n g  any layoff po l i c y  

based upon seniority insofar as it would de­

crease the percentage of blacks in 7 job class-

5/ifications in the Memphis Fire Department.—  

The City then proposed and the district court

5/ The Union appealed only from the injunc­
tion entered on May 8, 1981, since the addi­
tional reductions enjoined on rJune 25, 1981
affe ct ed on ly em pl oy ee s who are not r e p r e ­
sented by the Union.

It is r e s p o n d e n t ' s  p o s i t i o n  that the 
Union's seniority provision in the Memorandum 
of U n d e r s t a n d i n g  (A. 8 0 - 8 2 )  is v o i d  and
unenforceable under Tennessee law. Although 
the Sixth Circuit did not decide this issue 
(Pet. App. 38), the Union continues to seek to 
enforce the seniority provision in its peti­
tion. S u b s e q u e n t  to the Sixth Ci rc ui t' s 
opinion on May 7, 1982, respondents discovered 
that Local 1784 argued that the Memorandum of 
U n d e r s t a n d i n g  is i l l e g a l  an d t h e r e f o r e  
a third p a r t y  could not sue the Union for 
damages as a result of a 1978 strike by the 
Union. The Tennessee Court of Civil Appeals



7

approved layoffs and demotions that included a
6/

proportionate number of blacks and whites.— 

Both the City and the Union appealed, and 

the Sixth Circuit affirmed the judgment of the 

district court in modifying the consent decree 

in or de r to o b ta in its stated p u r p o s e  and 

to preserve black representation in the Fire 

Department.

5/ continued

upheld the Union's position in Fulenwider v. 
F i r e f i g h t e r s  A s s o c i a t i o n  Local Union 1 7 8 4 ,
_____ S.W.2d _____ (Tenn. App. 1981). See also
C i t y  of C h a t t a n o o g a  v. C h a t t a n o o g a  Fire -
fighters Ass'n Local 82 0, _____S.W.2d _____(Tenn.
App. 1980); -Jackson Transit Authority v. Local 
1285, 50 U.S.L.W. 4603 (-June 7, 1982). The
Union should th er ef or e be p r e c l u d e d  from 
arguing the enforceability of its contractual 
rights when it has taken a prior inconsistent 
position. See 1 B Moore's Federal Practice 
1[ 0.405 [8] at 765-55 (2d ed. 1974).

6/ The total number of employees laid off 
and demoted were 72 whites and 8 blacks. All 
laid off employees were reemployed by November 
1981. The Fire Department made new promotions * 
in rJune 1982 and expects to hire a new class 
of 30 f i r e m e n  in the l a t e  fall of 19 82 .



8 -

REASONS FOR DENYING THE WRIT 

Th e p e t i t i o n e r s  s t a t e  th e q u e s t i o n  

presented in terms of the abrogation of a bona 

fide s e n i o r i t y  system wh er e no finding of 

discrimination has been made. The district 

court and the Sixth Circuit, however, consi­

dered these subsidiary issues in the decisions 

b e l o w  and instead de fi ne d the issue as the 

extent of a court's power to enjoin layoffs 

and demotions that would drastically impair 

the relief mandated by the consent decree. We 

t h e r e f o r e  r e s p e c t f u l l y  a s s e r t  t h a t  the 

question presented is:

W h e t h e r  a d i s t r i c t  court has e x ­
c e e d e d  t h e  l i m i t s  o f  i t s  p o w e r  to 
m o d i f y  a c o n s e n t  d e c r e e  to p r e v e n t  
minority employment from being affected 
d i s p r o p o r t i o n a t e l y  by u n a n t i c i p a t e d  
layoffs and demotions and thus preserve 
the level of benefits procured through 
the decree?

I. The Decision of The Sixth Circuit, Modi­
fying The Consent Decree, Is Consistent 
wi th The D e c i s i o n s  of This Court And 
Other Circuits.

T h e  C o u r t  of A p p e a l s  ha s w r i t t e n  a



9

thorough opinion that relies on the power of 

the Court to en jo in a layoff and d e mo ti on 

p o l i c y  based upon s e n i o r i t y  that conflicts 

w i t h  the F i r e  D e p a r t m e n t ' s  d u t y  u n d e r  a 

consent decree to remedy serious black under­

re pr es en ta ti on. In doing so the Court's 

opinion is consistent with opinions in other

recent cases in which this issue was pre- 

. - 7/
sented. Petitioners argue that this 

Court has not deci de d the issue of how a 

bona fide seniority system can be modified to 

maintain gains made under affirmative action 

plans or decrees, yet in Franks v. Bowman 

Transportation Company, 424 U.S. 747 (1976),

seniority was not found to be immutable under 

703(h) but was subject to alteration in the 

collective bargaining process:

Th e C o u r t  has a l s o  h e l d  t h a t  a
collective bargaining agreement may

7/ See Boston Chapter NAACP v. Beecher, 679 
F.2d 965 ( 1st Cir. 1982), c e r t . p e n d i n g ; 
Mo r g a n  v. O ' B r y a n t , 671 F.2d 23 (1st Cir. 
1982), cert, denied, U.S. ; Brown v. 
N e e b , 644 F.2d 551 (6th~CTr. 1981).



10

go further, enhancing the seniority 
s t a t u s  of c e r t a i n  e m p l o y e e s  for 
p u r p o s e s  o f  f u r t h e r i n g  p u b l i c  
p o l i c y  i n t e r e s t s  b e y o n d  w h a t  is 
requ ir ed by statute, even though 
this will to some extent be detri­
mental to the expectations acquired 
by o t h e r  e m p l o y e e s  u n d e r  t h e  
previous seniority agreement. Ford 
Motor Co. v. Huffman, 345 U.S. 330 
( 1 9 5 3 ) .  A n d  t h e  a b i l i t y  of the 
union and the employer voluntarily 
to m o d i f y  th e s e n i o r i t y  s y s t e m  
to th e en d of a m e l i o r a t i n g  the 
effects of past racial discrimina­
tion, a national policy objective of 
the highest priority, is certainly 
no le s s  t h a n  in o t h e r  a r e a s  of 
public policy interest.

424 U.S. at 778. See a l s o , Tangren v. Wacken- 

hut Services, I n c . , 658 F .2d 705 (9th Cir. 

1981), cert, denied 50 U.S.L.W. 3802 (April 

5, 1982).

In this case a municipal employer who had
8/

sole a u t h o r i t y —  to d e t e r m i n e  the method of 

layoff and demotion, voluntarily entered into 

a cons en t de cr ee that m a n d a t e d  a f f i r m a t i v e  

relief to a class of black employees and appli-

8/ See fn. 4, supra.



cants. By adopting a seniority-based layoff 

policy, the Fire Department acted contrary to 

the purpose of the. consent decree: remedial 

hiring and p r o m o t i o n  of black e m p l o y e e s  to 

remedy the past hiring and promotion practices 

of the Me mp hi s Fire D e pa rt me nt . Under such 

c i r c u m s t a n c e s  the d i s t r i c t  court's ho ld in g 

correctly exercises the court's authority to 

insure that its Orders, w h e t h e r  ente re d by 

consent or not, are obeyed, and their purposes 

achieved. United States v. Swift and Company, 

286 U.S. 106 (1932); United States v. United 

Shoe Machinery Company, 391 U.S. 244 (1968); 

King Se el y Thermos Company v. Alladin Indus­

tries, Inc. , 418 F.2d 31 (2nd Cir. 1969); 

E E O C v. Plumbers & Pi pe fi tt er s, Local 1 8 9 , 

438 F .2d 408 (6th Cir. 1971); United States v. 

H a l l , 472 F .2d 261 (5th Cir. 1972).

It should be recalled that the section of 

Title VII which accords a measure of immunity 

to bona fide s e n i o r i t y  systems, § 703(h), 

merely helps define what is and what is not a



12

violation of the Act. Franks v. Bo wm an, 424

U.S. 747, 758 (1976). Thus, in every case in 

which this Court ruled regarding a seniority 

sy s t e m  that is claimed to be bona fide, it 

was addressing the question of whether or not 

a violation of the Act has been established. 

See Teamsters v. United St at es, 431 U.S. 324

(1977); C a l i f o r n i a  Brewers Ass'n v. B r ya nt, 

444 U.S. 598 (1980); American Tobacco Co. v.

P a t t e r s o n , ____ U. S. ____, 102 S . C t .  13 34

(1982); Pullman Standard v. S w i n t , ___  U.S.

____, 102 S.Ct. 1781 (1982). Here, we are

concerned with the question of whether or not 

a remedial order may require departures from 

the routine operation of an arguably bona fide 

seniority system. Where the contours of such 

remedial orders are involved this Court has 

r e p e a t e d l y  a p p r o v e d  a l t e r a t i o n  of t h o s e  

seniority rules. See Franks v. Bo wm an, su pr a,

and Zipes v. T r a n s W o r l d  A i r l i n e s , ___ U.S.

____, 50 U.S.L.W. 4238 (February 24 , 1 982).



13

See also, Morgan v. 0 8Bryant, 671 F.2d 23 (1st

Cir. 1982), cert, de n i e d , ___  U.S. ___ . in

t e m p o r a r i l y  m o d i f y i n g  a consent de cr ee by 

altering a seniority-based method, the dis­

trict court did the m i n i m u m  n e c e s s a r y  to 

maintain the status quo for gains made under 

the provisions of the 1980 decree. The dis­

trict court's proportional layoff and demotion 

order "does not require the discharge of white 

employees and their replacement with new black 

hires." United St e e l w o r k e r s  of Am er ic a v . 

W e b e r , 443 U.S. 193 ( 1981). Rather, when a

reduction in force is necessary it requires 

that black employees will remain at specific 

levels in the Fire Department until the ulti­

mate goal of the consent decree is attained: 

representation of blacks in each job classifi­

cation in proportion to their numbers in the 

labor force. Seniority is only modified to 

the extent that blacks do not suffer dispro­

portionately from the layoffs.



14 -

II. The Decision of The Court of Appeals Is 
Supportive of The Congressional Policy- 
En c o u r a g i n g  S e t t l e m e n t  In E m p l o y m e n t  
D i s c r i m i n a t i o n  Litigation.________________

Both the district court and the Court of 

Appeals sought a modification of the decree 

which would allow the City to proceed with its 

layoff policy, subject only to a reasonable 

deference to its obligations under the decree. 

In so doing, the d i s t r i c t  court, working 

within the context of a voluntary agreement, 

the implementation of which it had overseen 

and ordered, achi ev ed a m o d i f i c a t i o n  which 

partially alleviated the City's fiscal con­

straints, while protecting the integrity of 

the court's order.

Such a pr oc ed ur e, p a r t i c u l a r l y  in the 

face of changed and unforseen circumstances is 

in no way likely to inhibit the future use of 

cons en t de cr ee s in Title VII litigation. 

First, the entire thrust of the di s t r i c t  

court's modification was to insure that the 

purpose of the decree, as explicitly stated



15

in the decree, was fulfilled. Second,

the parties to the decree explicitly indicated

the continuing jurisdiction of the court to

issue" ... such further orders as ma y be

n e c e s s a r y  or a p p r o p r i a t e  to e f f e c t u a t e  the
1 0/

p u r p o s e s  of t h i s  d e c r e e " .  T h i s  ca n

only be interpreted as acknowledging the power

of the court to modify the decree and to grant

additional relief not embodied in the decree,

if it were necessary in order to obtain the
11/

purposes of the decree.—

It follows that in this instance the 

court, faced with an action which threatened 

to both viol at e the de cr ee and nu ll if y its 

past effects, appropriately moved to protect 

the in te gr it y of its orders, as a court of 

equity may, whether or not the power to modify

1/

9/ See, Consent Decree § V., A64.

10/ See, Consent Decree § VII., A69.

11/ Roberts v. St. Reqis, 653 F.2d 166, 172
(5th Cir. 1981).



16

the i n j u nc ti on is rese rv ed by its terms.

United States v. Swift and C o m p a n y , s u p r a .

Far from inhibiting settlements, actions

such as these which consider the concerns of

all parties and the purpose and context of the 
12/

agreement, insure that a consent decree pur­

suant to Title VII may, if necessary, be modi­

fied fairly to maintain its integrity while
1 3/

b a l a n c i n g  the in te re st s of the parties.

12/ See e .g. , United States v. ITT Continental 
Baking C o ., 420 U.S. 223, 238 (1975); Eaton v . 
Courtaulds of North America, Inc., 578 F . 2d 
87, 91 (5th Cir. 1978).

13/ The petitioners argue that the modifica­
tion of the consent decree if allowed to stand 
w o u l d  u n d e r m i n e  i n c e n t i v e s  fo r s e t t l i n g  
employment discrimiation cases where seniority 
rights are at issue. Yet one of these peti­
tioners, the City of Memphis, ap p r o v e d  a 
consent decree governing its utility division 
that included this provision:

(c) Defendants agrees that, in 
the event of layoff or reduction in 
force, all reasonable steps will be 
taken to minimize the effect of such 
actions on the a c h i e v e m e n t  of the 
goals of this Decree. M L G W  shall 
no t i f y  counsel for the p l a i n t i f f s  
forty-five (45) days in advance of



CONCLUSION

Fo r all the f o r e g o i n g  r e a s o n s ,  the

13/ continued

any p r op os ed layoff or re du ct io n 
in force, specifying those persons, 
by race and sex, to be affected by 
such action, w h e t h e r  to transfer, 
demotion, layoff or te rmination; 
and sp e c i f y i n g  the effect of the 
a c t i o n s  o n  t h e  a c h i e v e m e n t  of 
the long-term goals of the Decree. 
If such action will have a signifi­
c a n t  a d v e r s e  e f f e c t  o b l a c k  or 
female em p l o y m e n t  in those areas 
subject to interim goals, MLGW shall 
indicate what alternatives to layoff 
or re du ct io n were c o n s id er ed and 
the reason for re je ct io n of these 
a l t e r n a t i v e s .  If c o u n s e l  f o r  
g o v e r n m e n t  or p r i v a t e  p l a i n t i f f s  
o b j e c t  to t h e  p r o p o s e d  a c t i o n  
of M L G W ,  th e p a r t i e s  s h a l l  m e e t  
p r i o r  to i m p l e m e n t a t i o n  of the 
p r o p o s a l  to a t t e m p t  to r e s o l v e  
the d i s a g r e e m e n t .  If a g r e e m e n t  
cannot be reached, the ma t t e r  may 
be referred to the Court for resolu­
tion .

U.S. & Ar m m e r  v. Memphis Light, Gas & Water 
Division (MLGFW), Civil Action Nos. C-74-286, 
74-17 (W.D. T e n n . ), Am en de d Cons en t Decree
entered November 14, 1980. Unlike the Fire
Department where no layoffs or demotions had 
been ma de or even d i sc us se d pr io r to 1981, 
MLGW had considered layoffs in 1976 when the 
initial consent de c r e e  was ente re d into. 
See also, Tangren, supra.



- 18 -

petitions for a writ of certiorari should be 

de n i e d .

THOMAS M. DANIEL*
RICHARD B. FIELDS 
COX & FIELDS 

707 Adams
Memphis, Tennessee 38105 
(901) 525-8601

'JACK GREENBERG 
0. PETER SHERWOOD 
CLYDE E. MURPHY 
RONALD L. ELLIS 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents

♦Counsel of Record



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