23 Fair empl.prac.cas. 20, 23 Empl. Prac. Dec. P 31,029 Wesley P. Bernard v. Gulf Oil Company

We do not intimate the district court. (West). 3A Bender’s 501(2) generally question. view on the merits of that 9.06 § Code Service Commercial Uniform King eds. (R. Duesenberg & L. AND REMANDED. REVERSED of loss until he retained the risk principal carrier if the goods to the delivered contract, as the shipment were

contract specific con-

ordinary contract is without terms, the risk of loss but he carried

trary goods to the the carrier tendered

until if the contract were buyer in Asuncion 672,- Fla.Stat.Ann, §§ contract. destination al., Wesley P. BERNARD et 2-509(1), Comment 5 672.2-503 & U.C.C. Plaintiffs-Appellants, Commercial (West); 3A Bender’s Uniform Service, supra, The un- Code § 8.03[l][a]. present fell derlying contract al., GULF COMPANY et OIL category if it were an shipment contract Defendants-Appellees. Bender’s ordinary C.I.F. contract. 3A Uni- No. 77-1502. Service, supra, Code form Commercial 8-35; 8.03[1], see 672.- § Fla.Stat.Ann. § Appeals, Court of United States York-Shipley, (West). Inc. Compare

2-320 Fifth Circuit. Co., 474 F.2d Atlantic Mutual Insurance June A. G. and Farbwerke Hoeschst M/V at 9 Nicky,’’ 589 F.2d “Don

1979) with 3A Uniform Commer- Bender’s Service, 8.03[1],at 8-36 n.

cial Code § relatively in- broad definition of 627.-

surable interest under Fla.Stat.Ann.

405(2) govern not the wet marine and does here,

transportation involved see insurance 624.607(2). The instructions from

id. § cargo principal obtain insur-

Glukstad’s not interest

ance could create insurable passed. had We cannot deter-

after risk present from the record when the risk

mine passed principal loss from the undisclosed Paraguayan buyer and when

to the longer

principal no had an insurable inter-

est.

Although Glukstad has refused disclose principal’s identity underlying

his

contract, Allstate made has not granted court has a motion to

district

compel production of that information. On

remand, parties opportuni- will have the underly- to establish those details of the

ty

ing contract that are relevant exist- an insurable inter-

ence nonexistence of clearly

est. Allstate is entitled informa- necessary to of that a determination principal’s Whether

issue. disclosure question

identity required will be is a Thibodeaux, Charles, charged that Gulf discriminat- Ulysses Lake Plaintiffs Gene La., Goldstein, C., hiring, job assignments, Washington, against D. Barry L. ed blacks Patterson, scales, discharge, Greenberg, discipline and em- pay Jack Patrick 0. New racially tests and City, ployed discriminatory for plaintiffs-appellants. York promotion progression prac- tainted Eddins, Ng, Atty., Joseph H. T. William tices, training blacks and and denied Counsel, Jr., L. Reis Assoc. Gen. Charles seniority They alleged blacks. refused chel, Counsel, B. Reilly, Asst. Gen. Susan to, acquiesced had agreed the union Employment Opportu A. Prager, Equal Lutz discriminatory practices. or condoned Gulf’s Commission, Washington, C.,D. Carol nity Title VII The district court dismissed Silver, Heckman, Drew Dunsay Jessica S. E. filed, summary untimely granted claim Sec., Gen., III, Atty. Appellate Asst. Days, on the judgment for defendants Justice, Div., Dept. Wash Rights Civil claim, applied as an additional laches C., curiae, E. E. ington, D. amicus for O. C. disposition of both claims. ground for its Duck, Sewell, Wm. G. R. U. S. Susan respect holdings, three we to these With Jones, Houston, Tex., for Gulf Oil. I, panel adopt parts opin- II and III Arthur, Tex., D. Murphy, Michael Port remand and reverse and district ion Oil, Workers, for Etc. Chemical & Atomic A we fourth issue will consider at court. Jr., Buchanan, Tallahassee, Fla., length. validity John D. It concerns Atlanta, Ga., restricting communica- Kaspers, F. ami- of the district William plaintiffs counsel tions named and their Hospital. cus Tallahassee Memorial potential with actual and class members not parties to the suit. a divided By formal panel vote the found the order valid. 596 F.2d at We hold that order vio- 1258. COLEMAN, Judge, Before Chief lated First Amendment to the Constitu- BROWN, GODBOLD, RONEY, GEE, TJO- and Rule Fed.R.Civ.P. FLAT, HILL, FAY, RUBIN, VANCE, I. The background KRAVITCH, JOHNSON, Jr., M. FRANK in the accurately The facts are stated HENDERSON, GARZA, REAVLEY, POL dissenting decision, opinion panel to the ITZ, ANDERSON, HATCHETT, RAN 1262-76, adopts F.2d and the court DALL, TATE, D. JOHNSON and SAM in statement. We restate facts CLARK, Judges.* A. Circuit THOMAS densed form. GODBOLD, Judge: Circuit April 1976, entered Gulf and EEOC brought by extra-judicial agree- This was as class action suit a into conciliation present employees six or retired covering alleged black ment racial discrimination Texas, Arthur, plant and against plant Port Gulf Oil blacks at the Port Arthur (cid:127) Company, alleged under Title VII of the dis- providing Civil for conciliation of Rights (42 2000e-2) practices pay Act of 1964 criminatory § U.S.C. and for back employees. The present and members of the and former § U.S.C. black employees agree- black employees parties asserted class are and No were May in employees brought black of the Port Arthur former ment. Plaintiffs this suit rejected represented by in associ- plant, applicants and black for em- local counsel (at from the ployment attorneys with Gulf Oil the Port Arthur with New ation York elsewhere). Education plant Legal The defendants are NAACP Defense and and Oil, a class answering and Atomic and before Gulf Oil and Chemical Fund. Before certified, request an unsworn Workers’ Union. was Gulf filed Co., Judges Goldberg, vacat- and Charles Clark 1. Bernard v. Gulf Oil F.2d * Ainsworth ed, participate did not or deci 604 F.2d 449 consideration sion of this case. rejected limiting plaintiffs’ arguments enter an com- that the court order constitutional their by parties and counsel explicitly munication and a entered modified potential class with actual members. suggested modeled on the Manual reports that it Gulf asserted had received II, Complex Litigation, (1973 for 1.41 Part attorneys had plaintiffs’ that one of attend- ed.),3 publication widely used federal meeting ed a of actual class and judges. of this validity It is modified group had advised the members and to order now that is before us. sign receipts pur- and releases sent to them permission On moved for July plaintiffs agreement suant to conciliation because for and themselves their counsel to commu- he twice as much for them in could recover proposed nicate with members of the just the suit filed. guidance from the also asked court. Judge Steger tempo- District entered a notice, They reproduced attached at 596 rary May 28.2 filed order on Gulf an addi- they proposed which to distribute charge plain- tional unsworn that the same constitutionally asserted were attorney tiffs’ had also recommended that entitled to The notice distribute. alerted signed employees, already receipts who had employees black to the existence of the should their releases return checks. acceptance lawsuit as an alternative to Gulf also filed an affidavit from EEOC urged Gulf’s conciliation offer them to which stated that the suit were issues attorney. talk accept- to an The time for almost identical to those embraced in the ance expired of Gulf’s conciliation offer agreement. conciliation August August or about On challenged Plaintiffs the constitutionality court, explanation, plain- without denied They of the temporary order. filed affida- tiffs’ motion a one-sentence order. vits denying charges and a brief Gulf’s as- provisions II. the order serting that numerous in the suit issues order, by plaintiffs described were not within matters conciliated. “gag order,” scope plenary On broad in proof June unsworn without nature, charges forbidding range of com- entering made Gulf and without wide fact, findings Judge Chief District Fisher munications.4 substantially by proposed It is the same as 2 of this of the communica- the Court H by modified order. See n. 4 infra. forbidden tion. The communications this include, to, (a) but are not limited solic- suggested 3. The form of the order is the same directly legal represen- indirectly of itation or in the 1977 edition of the Manual. potential tation of and actual class members appears The 1977 edition also at 1 Pt. 2 parties who formal to the are not class ac- Practice, II, 1.41, Moore’s Federal Part at fl tion; (b) expenses and solicitation of fees and (2d 1979) Miller, Wright 226-28 ed. and & Man- agreements pay expenses to from fees and II, Complex Litigation, ual for Part 1.41 potential and actual class members who are 188-89 action; parties (c) class not formal to the by order, modified, parties provided: 4. The solicitation formal as class requests by opt action of class members to IT IS ORDERED: subparagraph out (1) in class actions under modify Judge That Gulf’s motion to (b)(3) F.R.Civ.P.; (d) of Rule and commu- Steger’s May granted; Order dated 1976 is party may (2) Judge nications from counsel or a which Steger’s May That Order dated status, misrepresent purposes tend to the and 1976 modified be so as read to as follows: action, action, any parties effects of the class and of actual In this all hereto and their potential directly or Court orders therein which indirectly, counsel are forbidden or impressions cause, orally tending, writing, create without to or in to communicate concern- counsel, adversely any any ing party, any potential with reflect on such action or actual Court, justice. party or class not a this the administration of member formal to the ac- approval obligations prohibitions the consent The and of this order without and of the ethical, proposed proposed legal are not exclusive. All other and communication and ad- by Any equitable obligations by dressees order of this this Court. such are unaffected proposed presented be communication shall order. writing designation (1) to this Court with a communica- of This order does not forbid description attorney or of all addressees and with a tions and his client or a between client, proposed approval prospective motion and order for on the who has initiative action, tus, parties purposes effects of the class are “all and persons enjoined The and their orders any potential hereto counsel.” of actual or Court and impressions create tend- therein which is subject forbidden commu- matter cause, adversely on ing, without to reflect any potential with or nications actual counsel, Court, the any party, this or any “concerning a party, member not formal justice.” of administration action . . . without consent [this] communica- approval proposed and of the The means of communication forbidden by proposed tion and addressees order of writ- indirectly, orally are or in “directly or More communications specific this Court.” ing.” includes, proscription but is not set exceptions, several order contains to, (a) legal of rep- limited are: solicitation (2): of subparagraph out second 1f potential resentation of and actual class attorney' and between communications (b) parties; members not formal solicitation client, attorney prospec- between expenses; (c) fees and of of solicitation by prospective client tive when initiated out; requests by opt class members to client, regular and communications (d) or par- “communications from counsel may tend ty misrepresent which to the sta- course business. (5) prospective be the the client or client That the contents the notice consulted I; with, employed employ Appendix proposed to same as that set out in or (2) (6) mailing attorney, occurring expense or bear the communications That Gulf regular per- copy or in of the to the formance of the course of business the notice and a Court’s order above; public by (4) or duties of office the individuals covered item (such Attorney General) agency (7) employees as the which who That all have delivered soliciting represen- receipts do not have effect of releases to Gulf or before counsel, misrepresenting days tation the sta- shall from the date Clerk’s notice tus, purposes accepted action or effect of the and or- to the offer deemed have ders therein. Agreement; contained in the Conciliation party any party communication, If (8) or counsel for a asserts any either That further right indirect, constitutional communicate with (other writing direct or oral or in member of and does so class without restraint pursuant permitted paragraph than those pursuant to that communicate (2) above) rep- parties, from the named their days right, five asserted he shall within after potential or resentatives or counsel with the such communication file copy Court parties to actual class members not formal communication, writing, of such if in forbidden; action substantially complete an accurate and sum- days inform the That Gulf Court mary of the communication if oral. be sent from the date of the Clerk’s notice proceed (3) That Gulf be allowed to names Clerk the Court of the payment pay awards and the back have or actual class members who obtaining receipts from and releases those signed accepted pay the offer of back employees the Conciliation covered receipts pursuant the Concil- and releases Agreement April between dated Agreement those iation and the names of Gulf, Opportuni Equal Employment the U.S. respond. who have refused or failed Equal ty Op for Commission and the Office any It is such Plaintiff’s contention that Interior; portunity, Department of the provisions limit as hereinbefore that stated charges private That the that settlement potential communication with members class employer VII is Title v. to be the has violated invalid, constitutionally citing Rodgers v. are encouraged, Allegheny-Lud United States Corporation, United States Steel Industries, Inc., lum denied, (3rd 1975), cert. 420 U.S. 1975), 1684, L.Ed.2d 649 This 48 L.Ed.2d 187 Rodgers inappli Court finds that the cable, case is (4) mail no- That the Clerk of the Court comports order with the and that this employees its tice to all of Gulf at Port Ar- Complex requisites in the Manual for set out Refinery by the thur who are covered Concil- 1.41, p. Litigation, Edition 106 CCH Section signed Agreement have not iation receipts informing and who specifically exempts which constitu pay back awards and releases for tionally protected the communication when days them that have 45 from filed such communication is substance of accept notice to by the the date of Clerk’s Court. provided the Conciliation offer as Co., F.2d at Bernard v. Oil Gulf expire

Agreement offer will until such n. 9. Court; further order sentation, is a subparagraph opt- solicitation of funds and of The third H requiring post-com- provision requests, misrepresentations much-debated out and filing any with the court of munication may create and adversely confusion reflect asserted to be constitution- communication jus- court or the administration of ally protected: Manual, I, tice. Part 1.41. The Manual § any party for a party

If or counsel adopt recommends that district courts local right asserts a constitutional to communi- imposing every potential rules “in actu- of the class with- any cate with member substantially al class action” the ban on so out restraint does communi- involved, here communication that is and in right, pursuant cate to that asserted he impose the absence of a local rule5 the ban days within after such commu- shall five by promptly order entered after a copy nication file with the Court filing potential any actual or class action. communication, writing, if in or an such 1.41; Id., I, II, (Suggest- Part Part 1.41 § substantially complete accurate and sum- Suggested ed Local Rule 7 and Pretrial mary of the communication if oral. 15).6 interpretation Order No. Our provision also contains a by basis for the court’s order is reinforced the clerk of the district court send a notice rejection plaintiffs’ court’s constitu- employees covered the concilia- those arguments ground tional on the agreement signed who have not re- comported order it had entered with the ceipts pay. and releases for back The no- requirements of the Manual. tice, order, appendix which is an tells We can that the assume district court did employee pending, case is that this ground not its order on conclusion that it, briefly describes and that he has been charges misconduct made Gulf potential identified as an actual or class Nothing were true. in its order indicates outstanding member. It describes the con- did, and, did, that it if it such a conclusion ciliation offer from Gulf and tells the em- procedurally improper would have been ployee accepting that he has a choice of evidentiary support. without Rather the declining being Gulf offer or it and appears upon to have acted the ra- sidered at a later date for inclusion in the tionale of the Manual that the court has the Employees class in the suit. are told they power enter a ban on communications days accept have 45 in which to the concilia- actual or class action as a tion offer. prophylactic against potential measure abu- III. The basis for the order ses envisioned the Manual.7 Presumably, since the district court made IV. The restraint order is findings, no upon sug- its order was based gestions Manual, represents significant contained in the The order restric- which procedures rights. recommends that be devised to tion on First Amendment Because anticipate prevent potential in no other appeals abuses court of has ruled on the actions, including repre- constitutionality8 suggest- solicitation of of the Manual’s change 5. The district court here involved had See n. infra. The semantic does not adopted a local rule. alter the thrust of the rule. panel majority interpreted 7. The the district only significant 6. The difference between the court’s action as we do. It treated Gulf’s suggested suggested pretrial local rule and the charges as irrelevant and considered that wording order is the of the rule’s “constitution- plenary power district court had in a class right” exception. suggested pro- al The rule prophylac- action to ban communications a vides: “Nor does the rule forbid communica- tic order. 596 F.2d at 1261 n. 14. protected by right.” tions a constitutional It imposes post-communication then the same fil- 8. In 1975 the Third raised the constitu- Circuit ing requirements the order does. While expressed tional issue and the its doubts about constitutionality we here consider of the power impose prior of the district court order, suggested analysis Manual's much of our restraint on communication or association equally applicable suggested is local rule. Rodgers Corp., (3d v. U. S. Steel 508 F.2d 152

467 order, traditionally restraint has been and because of broad Prior ed rule and the Manual’s suggestions,9 judicial prohi we impact “predetermined defined of issues before us. restraining specified expression the constitutional bition address Lawyers v. Chicago Council of . entered in hold that the order We Bauer, 242, 1975), 522 248 F.2d prior re is an unconstitutional denied, 3201, 912, cert. 49 427 U.S. 96 S.Ct. straint. see also Nebraska (1976); L.Ed.2d 1204 freedom of restraints on Prior Stuart, 539, Press v. Association 427 U.S. long in Ameri speech have been disfavored 2802, 683, 559, 2791, 96 L.Ed.2d S.Ct. 49 Minnesota, v. 697, Near 283 U.S. can law. Minnesota, v. Near (1976); supra; 697-98 625, (1931). While a 75 L.Ed. 1357 51 S.Ct. Restraint, of Litwack, The Doctrine Prior per is not unconstitutional prior restraint 519, (1977). 12 520 Harv.C.R.-C.L.Rev. se, presumption against its heavy there is a expansive not often This definition has Southeastern Promo constitutionality. are, how been further elaborated. There Conrad, tions, 546, 558-59, v. Ltd. 420 U.S. ever, but features separate four related 1246, 448, 1239, 43 L.Ed.2d 459 95 S.Ct. prior re distinguish serve to Better Austin v. (1975); Organization for a im speech limitations on free straints from Keefe, 402 U.S. 415, 419, 91 S.Ct. restraints. posed subsequent 1, (1971). in Part 29 L.Ed.2d 5 We discuss 1. gen Origin. VI, prior A below, under restraint the circumstances which a in ori- erally judicial legislative than may be held lawful. rather restraint L.Ed.2d 50 Cir.), tem of Freedom sumption be controlled move the outside world. the it probably as the And the interest of the Bridges [T]he administration of any ment. See Wood v. L.Ed.2d 339 U.S. Harney, 331 U.S. black class members on whose seek to no associational S.Ct. Fund, dural device amendment issues. See New Lottery approval] State See, S.Ct. The seems clear that the NAACP question limits of a cert. (3d Cir.), 86 L.Ed. 192 blanket (1947); e. 2603, ^[******] committee which drafted the Bar, expressions imposition Inc.. litigate g., Comm’n United 83 S.Ct. its went too far in upon California, 401 U.S. United 8 L.Ed.2d 569 (1971); but that Pennekamp rights exception court’s certainly issues Craig Harney, supra, communicate Legal access (Rodgers 423 v. justice of and associations granted, See T. are involved in this effort Transportation Georgia, from Expression such NAACP 90 L.Ed. Defense and Education powers important speech judiciary to the Rule 23 9 L.Ed.2d 405 racial discrimination. to the first amend diminish raises serious first 832, does not authorize I): Emerson, 91 S.Ct. Whatever a condition (1962); Craig v. (1974). Florida, 417 U.S. States, 370 U.S. in this v. 96 courtroom to apparent Jersey 449 et Button, behalf S.Ct. sought 491 Union strength There is respect, Manual 907, (1963). proper proce 54, [prior L.Ed. State they Sys seq. as- 94 46 v. 9. The local rule doubt independently D.Md.R. M.D.N.C.R. Mining been (D.Minn.1977). 3.9.4; Fla.R. ties Id., mended rule and its refusal to writ Supplement Philadelphia, 508 Circuit elected to ground, fronted the constitutional issue. tional, Inc., trolling circuit going The and order based [T]here communication vesting trict court to Bridges Part constitutionality of the order. unreviewability position F.2d concerning adopted many T977 edition Manual. S.D.Tex.R. Second 19; mandamus, recommendations and Manuf. and no 20; I, at 29 n. 28. requires decision should be modification v. of unreviewable discretion N.D.Ga.R. reviews the division ban orders California, 162-63, 1.41, Inc. v. of the overturn in numerous districts. Circuit, Weight F.2d 770 See, circuit has since suggested by local order, but impose it. 6; p. of the court of thereon, except no and thus did not of the Manual adhered Weight proceed on a association. e. W.D.Wash.R. Co., validity rules, 221.2, discretionary supra, have also been g., 17(b)(6); similar restriction (2d However, 18 FEP Cas. NOW edition. concludes: Watchers on the 3; would in the authori- appeals N.D.Ill.R. v. Minnesota 1972), directly when restraint Watchers Manual S.D.Ohio 1 J. sample 23(g). suggestion permit The 1978 orders the Third deal with statutory in a See S.D. the fore- Interna- entered Moore, recom- a con- rested of the rule has dis- 22; No on by R. of 468 822, 733, 29 91 836 enabling statute au- S.Ct.

gin, although suppression publica- J., judicial (1971) (White, concurring). thorize the Minnesota, supra. The es- tion. Near v. or- question, purpose Without places it is that prior restraint sence of upon publication. der is restraint personal under the communications specific This distinc 3. Means of enforcement. Kalven, judge. Fore- censorship of the prior subsequent re War, tion between Nation is at 85 Even When a word: inextricably prior linked to the 3, Kal- straints is 33 Harv.L.Rev. [hereinafter unique' pur judicial origin and restraint’s ven].10 im contempt is an pose. by “Punishment undeniably order is The district court’s ‘prior restraint’ portant attribute of a origin.11 judicial criminal statute distinguishes it from a suggested that Purpose. 2. It has been type expression.” Chi forbids a certain sup- purpose prior of a restraint the sole Bauer, Lawyers supra, v. cago Council of pression punishment. than South- rather penalty The is thus both F.2d at 248. 522 Conrad, Promotions, supra, Ltd. v. eastern subject less swiftly imposed and more 1246, 558-59, at at S.Ct. U.S. jus of the criminal mitigating safeguards Minnesota, 459; supra, v. L.Ed.2d at Near punishment is the for vio system tice than 630, 715, 75 L.Ed. at at at 51 S.Ct. U.S. Nebraska Press lation of a statute. See statute, by which a criminal 1367. Unlike Stuart, supra, for its v. 427 U.S. at punishment Association terms defines its violation, 697-98; not deal prior 559, 2802, restraint “does at 49 L.Ed.2d at 96 S.Ct. provides pun- for no punishments; it 1202, with (5th Gurney, 558 F.2d U. S. ishment, contempt for except in case of 968, 1977), cert. U.S. order, sup- but for of the court’s violation 1606, This lack 56 L.Ed.2d is, for re- injunction, pression and safeguards dangers accentuates the in Near, supra, 283 upon publication.” straint any suppression speech. herent 715, 631, 75 L.Ed. at U.S. at 51 S.Ct. at Promotions, Conrad, Ltd. v. Southeastern justification drawing The a dis- supra, 420 at 95 S.Ct. at “a on this difference is that tinction based 459-60; Halkin, 598 F.2d L.Ed.2d at In re who society prefers punish free the few (D.C.Cir.1979). 184 n. 15 rights speech abuse after break in this case is expression The restrained law than to throttle them and all others by any not forbidden statute. text of Promotions, beforehand.” Southeastern the order is silent as means enforce- Conrad, at supra, Ltd. v. ment,12 459; possible and there are other means L.Ed.2d at see also S.Ct. at available,13 S., accept appellees but the that the New York Times Co. v. U. 403 U.S. Stuart, supra; is an administra Nebraska Press Association v. 10. The classic restraint S., adopted pursuant licensing New York Times Co. v. U. 403 U.S. to a tive scheme 29 L.Ed.2d 822 with statute. The licensor has broad discretion regard publication to each to be restrained. Promotions, See, g., validity pass e. Southeastern Ltd. 11. We need not on the Conrad, 43 L.Ed.2d made the Seventh Circuit in Chi- distinction Int’l, McAuliffe, Bauer, cago Lawyers Penthouse Ltd. v. Council judicial between courts as bodies 1359-61 rulemaking quasi-legislative type courts as or distinction between this of scheme and However, general legislative was since the instant order more enactment is that bodies. promulgated litigation operates only specific publications, in the course of and not restraint rule, that Circuit’s as a local it satisfies even chosen the administrator. There is thus less judicial diversity of a restraint. “tendency definition room for to exercise its break and control the violence of faction." The (Madison). danger Federalist No. 10 The same 12. The Manual is silent also. respect judicial exists restrictions on speech; indeed, plaintiff free Possibly penalize most of the more recent the court could judicial removing attorney disobeyed restraint cases have involved who the order See, class, deny licensing. g., attorney with- rather than administrative e. him as for the (1973) (applying against is the con- rule of enforcement intended collateral at means court, judicial tack to agree.14 publication); we restriction on tempt power of the Timmons, 120, 124-25(5th cf. In re 607 F.2d penalty dangers associated with The 1979) (similar Cir. distinction between civil though other sanc- contempt inhere even Thus, contempt). and criminal a re Persons are to some extent available. tions straint distinguished be from a statute subject us could reason- to the order before prohibiting publication in that the former contempt ably the court’s conclude has “an immediate and irreversible sanc or- power extended to énforcement of the tion. If it can be said that a threat of der, inescapable the conclusionis that it criminal or civil publication sanctions after exposure contempt that silenced was speech, prior ‘chills’ restraint ‘freezes’ it at attorneys and caused them to ask plaintiffs’ least for the time.” Nebraska Press Associ leave of court to send out the notice to class Stuart, supra, ation v. 427 U.S. at members.15 S.Ct. at 49 L.Ed.2d at 698. As one Moreover, potential availability eloquently commentator has observed: other sanctions cannot serve to reduce the speech “Prior restraints fall on with a bru infirmity constitutional of the order. This tality finality and a all their own. Even if prong of the test primarily is concerned they are ultimately lifted cause ir procedural safeguards with the lack of asso- remediable loss—a loss in the immediacy, ciated with enforcement of re- impact, speech.” Bickel, A. The Mo contempt straints. The fact that is only rality (1975), quoted of Consent 61 in Ne one of several alternative sanctions does not Stuart, braska Press supra, Association ameliorate this concern. 427 U.S. at S.Ct. (Brennan, J., at 727 concurring). 4. Means of constitutional chal lenge. unconstitutionality While the of a impact present order was di- prose statute be raised as a defense rect and immediate. It silenced the named violation, cution for its litigant plaintiffs who diso attorneys during and their beys injunction precluded raising period from that Gulf’s conciliation offers were invalidity its constitutional in outstanding putative defense class members contempt proceedings. Compare considering were accept. Shuttles whether to A Birmingham, worth v. plaintiff, questioned by 394 U.S. 89 S.Ct. named the black working L.Ed.2d 162 next employee concerning Walker to him Birmingham, advantages 18 the suit or the relative concil- Dickinson, suit, L.Ed.2d 1210 see reply. U. S. v. iation award and could not (5th 1972), 465 F.2d 496 dialogue16despite Cir. order cut off the conten- plaintiffs’ 38 L.Ed.2d 223 tions of counsel that some of the status, potential contempt power. draw class action Halverson v. Conve- court’s See In re Inc., Mart, (7th Halkin, supra, 15; I, nient Food Rodgers F.2d 927 Cir. 598 F.2d at 184 n. 1972); Corp., Korn v. 161; Kalven, Franchard 456 F.2d 1206 supra, 508 F.2d at 85 Harv. (2d 1972); Kronenberg v. Hotel Governor 156; Note, L.Rev. at 34 & n. 88 Harv.L.Rev. Inc., Clinton, F.Supp. (S.D.N.Y.1968), representative plaintiff or remove as class disobeyed. who Sanctions such as these would Exception (2) subparagraph 16. in the second available, however, against not be defendants (2) permits attorney communication between II them, respect and their counsel. With client, attorney prospec- and between tempt would seem to be the available tive client if on the initiative of a client or the sanction. prospective provision concerning client. This prospective largely illusory; presuma- Contempt clients is here would be criminal because action, bly, prospective (class punish past in a class client used to In re Tim- misconduct. mons, member) attorney 123-24 would often learn of the present (a plaintiff), from a client named but statute, may willing One who to violate a present here the client is forbidden to talk to penalties, may and thus risk criminal be less prospective client. willing injunction act direct defiance of an subject or court order and thus himself to the frequently arise civil by the tions of law not covered were suit issues Button, rights litigation,” NAACP plaintiffs which agreement conciliation 332, 422, 328, 415, 9 U.S. 83 S.Ct. L.Ed.2d par- were not members putative class 405, in “a dif- (1963), engaged the 411-12 benefits to that the conciliation ties and oppressive, mali- ferent matter from the inadequate. stopped It class putative were cious, process legal use the a or avaricious discovery at time when investigation and 443, Id. at 83 purely private gain.” for critical, has filed. just after suit been it is 343, 9 at 424. See also at L.Ed.2d rights are of First Fragile Amendment Inc., 426 Enterprises, Miller v. Amusement delay. prejudiced by Nebraska ten lost or (5th 534, 14 F.2d 539.n. Stuart, supra, 427 Association v. U.S. Press one who principle the 609, 2826, 727 Faced with 49 L.Ed.2d at at 96 S.Ct. at injunction may not raise uncon- J., an (Brennan, concurring); Zwickier v. Koo violates pro- contempt 252, a defense in ta, stitutionality 19 88 S.Ct. Smith, the order to ceedings, appellees v. construe (1967); 452 Collin 578 L.Ed.2d Cir.), permit contempt. to consti- a defense proposed status of the tutionally protected U.S. good Quaker Hickel, the (1978); Group A or communicator’s Action v. communication status, argue, Barnett, appellees (D.C.Cir.1969); faith in that belief Restraint, contempt. constitute a defense The Puzzle Prior would Stan.L. have This is not found within qualified Courts defense Rev. therefore by panel the willing expedite the was read into it commendably pro been order but ceedings involving rights. majority. First Amendment 596 F.2d at 1261. S., supra, York Co. U. New Times correct, Even if this construction is issued (Supreme days Court decision af freighted preconditions is so with defense TRO, days publica ter first after initial little comfort uncertainties it is Here, tion). during the pendency of the attorney party. appellees’ Under offer, conciliation members pre- struction, is a filing requirement substantially deprived17 oppor were constitutionality, requisite to assertion of tunity attorneys confer presum with the constitutionality, good in as a faith belief ably knowledgeable, concerning most only by Indeed it is the vehicle defense.19 they accept whether should Gulf’s offer or requirement appellees filing At

look to the suit for redress. the time read the order a defense not otherwise into they most were cut needed counsel off contempt filing in a case.20 The available until attorneys from most available requirement expression. With itself chills expired.18 make a had time to choice members, respect fil- to the individual class especially ing days “complete summary” The ban on is communications within five both this is a egregious every because race dis- oral communication about had crimination case and because the counsel each class member with his impos- showing employees, practical include black silenced without factual fellow is Fund, that, recog- Beyond knowledge Defense of what Legal sibility. from the those is having constitutionally protected Court as “a not Supreme nized reputation expertness employee. to the usual corporate readily available sense, plaintiffs for the presenting arguing ques- the difficult real individual purpose entering supra. with such a n. 16 little an order 17. See meaning. impact is the restraint this case 18. delay exacerbated the inevitable associated filing requirement nothing Facially is appellate litigation. The court en banc with court, more than a means of notice to years this four after the decides case almost contempt. No to a defense of one unrelated ban on communications was entered. interpretation, and we doubt it advances was intended. filing act It not that the is contended contempt. would be absolute defense There attorney An silence is the alternative. or restraint. The First Amendment is not means, absolute, knowledge, have the and better protection will “the even as to reports required, previous absolutely to file court as restraint is not unlimit Minnesota, Near constitutionally if he asserts that he is ed.” but U.S. 1367; clients, prospective S.Ct. at 75 L.Ed. at ac entitled to talk with ask cord, aid, Times Film support group Corp. Chicago, or seek from financial 81 S.Ct. 5 L.Ed.2d 403 community, filing or the will be a substan- Books, Kingsley Brown, Inc. v. attorney claiming burden. An tial a consti- 1325, 1 L.Ed.2d 1469 Mate right tutional to talk with witnesses could rial Also, unequivocally protected by compliance nigh impossible. well find subject prior Constitution be the of a filing requirement arguably runs afoul procedural restraint if safeguards sufficient attorneys’ product work rule of Hick- provided. possibility are This does 495, not exist Taylor, 385, man v. 329 U.S. 67 S.Ct. present case because communica L.Ed. 451 proscribed by tions the order are constitu accompanied The conditional defense is Also, tionally protected. as discussed in effect, by chilling a second the risk of trial VI, below, procedural safeguards Part are contempt criminal charges, guilt on with entirely lacking. possibly turning innocence on whether one’s right The restraint on counsel’s to talk protection assertion of constitutional has potential with class members about Moreover, “good been made in faith.” case is plenary. The restraint is not limit- ambiguities omissions and of the order and prohibiting potential ed to solicitation of when, possible differing as to constructions clients. The attorneys may not counsel a all, at protected against contempt, if one is employee black free of any effort to solicit chilling accentuate the effect.21 noted, him. We already begin- have at the attorneys, Most faced with an order like IV, ning of Part expressed by concern us,22 the one before would pursue the course I, the Third Rodgers Circuit in at by chosen counsel in this case and seek 162-63, 165, prob- over the constitutional approval attempting of the court before lems raised conditioning access to class potential communicate with actual or procedures action upon prohibiting commu- Halkin, members. In re See 598 F.2d nications between counsel potential 15; at 184 n. Goldblum National Broad- class members. casting Corp., In general addition to the restraint on attorneys specific there is a restriction despite filing provision, Thus and the against subparagraph (a) solicitation in of defense, arguable “good faith” the order (2) of the order which forbids “solicitation has “immediate and irreversible” effect directly indirectly legal representation aof restraint. and actual class members who V. The expression that is restrained parties are not formal to the class action.” protected Button, supra, progeny, NAACP v. and its Inquiry Primus, does not end with a de In re 98 S.Ct. U.S. termination pri- (1978), that the order constitutes a Transportation L.Ed.2d 417 United example, general highlights 21. For in addition to the ban indeed it overbreadth and re- —the communications, (a) subparagraph chilling pro- sultant effect of the Manual’s U expressly forbids solicitation. posed Prudent counsel rule. very safely Note, well conclude that he cannot 88 Harv.L.Rev. 1922 n. 74 rely upon asserting protection constitutional Younglove, See also Zarate v. 22 FEP Cases specific “good the face of this ban —if there is a (C.D.Cal.1980). good faith” defense can counsel be in faith if he expressly what present does he is ordered not to do? 22. The deficiencies are in both the or- As one commentator has noted: suggested der and the n. 6 local rule. supra. proviso exempting constitutionally-pro- The tected communication does not eliminate— Legal at those of De- Bar, activities issue are 91 S.Ct. Union v. State lawyers. dif- Fund The material (1971), United Mine fense L.Ed.2d Association, employees must choose is that here ference Bar v. Illinois Workers a conciliation offer (1967), between the lawsuit and 19 L.Ed.2d 88 S.Ct. had been no concilia- Vir in Button there Trainmen v. while of Railroad Brotherhood attending the 1113, 12 people Bar, tion and offer. The ginia State Legal Fund Defense meetings held (1964), the conclusion mandate however, Button, have did (a) lawyers proscribes constitu subparagraph Button, initiating a lawsuit and between choose tionally protected expression. type participating in a lawsuit. solicita that NAACP the Court concluded here rights people would have to make bring civil suits choice the persons Button is not so different protected under the First and and in activity was occurred in this that could have 371 U.S. at 428- solicitation Fourteenth amendments. pro- scope activity at was outside the 9 L.Ed.2d 415.23 The characteristics politi mode tected Button. was treated as a solicitation brought it through within group solicitation that expression cal effectuated protection equally in Button are activity falling sphere stitutional of asso also West- guaranteed by present in this Great rights the First case. See ciational Cities, Binstein, F.Supp. v. 476 827 The ern Inc. Amendment. solicitation activities (N.D.I11.1979) dis- (holding rule similar to holding Button included meet considered in inapplica- legal constitutionally to court’s order ings explain steps needed achieve trict solicitation). meetings non-profit ble to desegregation. At these forms Legal De were circulated which authorized of was vitality continued Button represent the attorneys fense “to Fund Supreme in recently affirmed Court signers legal proceedings to achieve de in Primus, re- supra. In re There the Court segregation.” 83 at U.S. at S.Ct. reprimand a issued disciplinary versed 332, 9 at against lawyer an solicitation. ACLU the economic relation- In to the trial The Court considered view of Gulf’s statements lawyer person and the countering by plain- ship court affidavit between the and the solicited, litigation attorney, purpose tiffs’ we not know whether do express possibility of conflict of interest be- there has been solicitation in a prospective client. Be- case to the forms tween counsel and similar distribution plaintiffs’ lawyer at- no financial attorneys’ cause the had direct Button. Whether case, is case a means meeting tendance at the was solicitation stake in the and the was Button, Here, belief, there expressing political not determinative. as in misrep- subject overreaching is matter racial discrimination. was no evidence of resentation, attorneys already engaged Plaintiffs’ are on Court concluded South solici- seeking punishment to Carolina’s of Primus for employees behalf of black civil violated First Amendment rights through vindicate their tation her action, seeking rights.24 plaintiffs were have while in Button Counsel for here attesting the fact begin clients In both cases the submitted affidavits suit. injured im- in an accident solicited this case a restriction automobile Because involves court, expression posed by political asso- a federal Fourteenth as a client. No her implicated. rights illegal is not racial Amendment or vindication of ciational his was involved. Ohralik based discrimination Ass’n, solely on 24. Ohralik v. Ohio State Bar claim the commercial constitutional (1978), Florida, speech de- Pace 98 S.Ct. 56 L.Ed.2d See also v. doctrine. Primus, sustained, day Adler, Barish, Daniels, (Fla.1979); cided the same So.2d against objections, Epstein, constitutional bar sanctions 482 Pa. Levin & Creskoff v. purely pe- attorney For (Pa. 1978). for solicitation. A.2d cuniary hospital person gain, he visited in strong expect presumption nor There is a they neither received constitutionality any prior any compensa- against from class members receive restraint, justification and the burden for their services.25 imposed heavier than therefore course, Of the communications of involving only subsequent- restrictions cases plaintiffs, proscribed by the individual also expression. Southeastern freedom on order, protected. equally are at least Conrad, Promotions, supra; New Ltd. v. Trainmen v. Vir Brotherhood Railroad S., supra; Organiza Times v. York Co. U. Bar, Great Western ginia supra; State Keefe, supra; tion for a Better Austin Cities, Binstein, supra. Inc. v. Sullivan, Books, Inc. Bantam Near v. 9 L.Ed.2d The communications covered the order Minnesota, Int’l supra; Penthouse Ltd. v. protected which call expressions are thus McAuliffe, Amusement supra; Universal play the panoply into full of First Amend- (5th Cir.), aff’d, Vance, v.Co. 587 F.2d 159 safeguards against prior restraint.26 ment -, 63 L.Ed.2d -U.S. justified is not VI. restraint The order in this is the essence specific places restraint —it communi- restraint general, prior under the personal censorship cations of a sought justified only expression if the to be It is judge. subject heavy pre- direct, thus result in “surely im restrained [will] sumption against constitutionality mediate, its damage.” Inter irreparable rigid imposed requirements Society for Krishna Consciousness national justify prior courts those who seek to Eaves, 1979), restraints. It one of the S., must fit within Co. v. U. su quoting New York Times narrowly exceptions prohibi- defined at pra, 403 against prior pre- tion restraints. It must justices may at 834. three L.Ed.2d At least direct, irreparable vent overly immediate rejected even standard as have damage, lenient, and it must be the least restrictive defining ap explicitly without doing Finally, means of it so. must com- York Times v. New Co. propriate test. See port required S., 732-33, procedural safeguards. 91 at supra, 403 at U. U.S. J., 2150-51, (White, joined The order at issue none meets of these 29 L.Ed.2d at 835 requirements. Stewart, J., concurring), and 403 U.S. at Thus, 672, (2) (solicitation subparagraph (b) (S.D.Ohio 1977) 25. of of the 673 of funds 11 directly applicable. Arguably hypo- defray litigation expenses is not this to of class action injury except requirements imposed thetical restraint permitted does no with certain chilling extent it adds letter). to the overall' effect. the content of the solicitation However, appropriate it is to Savings comment on it Sayre also v. Abraham Lincoln Federal part since it is of 379, the Manual’s form. Ass’n, Unit- (E.D.Pa. & Loan 384-86 65 F.R.D. Transportation Bar, supra, ed State Union v. 1974), modified, gen- 117 see 69 F.R.D. Supreme interpreted Court Button and Note, erally By Attorneys: A Pre- Solicitation following proposition cases it to for the stand Recommendation, diction and a 16 Houston activity that “collective undertaken to obtain 452 L.Rev. meaningful access to the is a courts fundamen- right protection tal within the of the First length plenary We do not discuss at 585, 1082, Amendment.” Id. at 91 S.Ct. at 28 (2) (d) provisions subparagraph con- U L.Ed.2d at 347. In at least some situations the misrepresent. cerning tending to statements defray collection or solicitation of funds to liti- merely compounds That the unconstitu- section gation adjunct necessary obtaining costs is a to tionality preceding sections exhibited meaningful activity access to the courts. Such adding vagueness to its de- and overbreadth deserving protec- therefore is of constitutional Snead, Hirschkop 594 F.2d 356 fects. See v. appropriate degree pro- cases. The (4th 1979) (en banc); Younglove, Zarate v. Cir. vary according would tection to the use to (C.D.Cal.1980); 22 FEP U. S. Cases 1042 put. which the funds are If to be are to be Garcia, (D.P.R. F.Supp. v. 1354 Marcano pay lawyers, used the solicitation is closer to Note, 1978); 88 Harv.L.Rev. n. gaining heart of access the courts. See Corp., v. Colonial Norris Commercial 77 F.R.D. recently Supreme 2154-55, Court has at 29 L.Ed.2d 740-41, at 91 S.Ct. competing when the that even reaffirmed J., concurring).27 (Marshall, to a right a criminal defendant’s interest is trial, prior restraint lawful, “the barriers the restraint “must fair To be against presumption and the high remain narrowly defined ex fit one within Press Nebraska use intact.” its continues against prior re prohibition

ceptions to the Stuart, supra, U.S. at v. Association Promotions, Ltd. v. straints,” Southeastern at 704. at 49 L.Ed.2d 96 S.Ct. at at Conrad, 95 S.Ct. supra, courts, one, ech including this have Other 459; is, L.Ed.2d at “[the] re oed sentiment. “[BJefore [sought to be must publication' restrained] imposed by judge, even straint be immediately cause inevitably, directly, trial, there assuring a fair the interest of to im of an event kindred the occurrence imminent, merely likely, must be not ‘an transport already safety at periling the justice. The threat to the administration v. . . . .” New York Times Co. U. sea proba be danger not remote even must 726-27, S., at 91 S.Ct. at supra, 403 U.S. ” ble; immediately imperil.’ it U. S. must J., (Brennan, L.Ed.2d at 832 Inc., Broadcasting System, v. Columbia California, Whitney v. curring); see also (5th lawyer’s A 641, 71 L.Ed. right to comment about First Amendment J., (Brandéis, concurring) can pending litigation or imminent criminal repres- emergency justify can (“Only an pose a proscribed if his comments be “ Indeed, sion”). has inter- one commentator imminent threat’ of interfer ‘serious and York Times U. S. hold preted New jus fair ence with the administration requirement is a that “there constitutional Chicago Lawyers tice.” Council of virtually everything, is everything, Bauer, In re quoting 522 F.2d at published at least once.” Oliver, entitled to 1971). Even F.2d 111 Kalven, supra, 85 at 34. Harv.L.Rev. context a criminal defendant’s trial, then, prior right a fair restraint brought within The order is “the most serious and the tolerable least any exception permitting restraints infringement rights.” on First Amendment it general Stuart, arises in the con merely because su Nebraska Press Association justice and the at pra, text of the administration 96 S.Ct. at 23. As the Third particular context of Rule Rodgers I: interest noted Circuit “[T]he the exigencies If of the Sixth proper administra judiciary do not lessen the on Amendment burden justice any blan tion of does not authorize restraints, justify prior those seek to who exception

ket to the first amendment.” 508 litigant so. the interests of a civil cannot do F.2d at 163. It obvious that in con is Snead, supra, F.2d at Hirschkop v. See expression judge trial the restrains duct of judiciary in the 373. The “interest of the But, ways. and association in innumerable justice does not proper administration of may a court’s the limits of be exception “[w]hatever the first any authorize blanket to clear that it seems powers respect, in I, Rodgers supra, 508 F.2d at amendment.” expressions as the they strength Thus, general against diminish presumption 163. sought to controlled mitigated by and associations be is a claim prior restraints orderly the outside administration move from the courtroom to that the fair justice stake.28 is at world.” Id. distinguish types adhering Douglas, cases as 28. We must two

27. Justices Black and inquiry peripherally at rejection relevant restriction their consistent 367, Harney, Craig v. 331 U.S. 67 S.Ct. expression, hand. standard also found the freedom of 1249, (1947), Bridges v. Cali- L.Ed. 1546 unacceptable. S.Ct. at 403 U.S. 190, fornia, 252, 825, L.Ed. 192 314 U.S. 62 S.Ct. 2141, 2144, 29 L.Ed.2d at (1941), progeny the circum- and their limited may impose con- which courts stances under 23, specific rights. Rule as a ed Prior Nor does restraints are no less sus pect justice, statutory setting cre in a than are in aspect of the administration of Monger, a constitutional context. Allen v. principles governing exception ate an 438, (9th 1978), pet. 583 F.2d Cir. Rodgers restraints.29 See v. U. S. - nom., Allen, cert. filed sub Brown v. 1001, (3d Corp., 536 F.2d Cir. Steel -, 1003, U.S. S.Ct. 62 L.Ed.2d 745 II) 1976) (Rodgers (suggesting, context interpret We cannot Rule 23 as action, test is “clear and authorizing prior restraints without rewrit danger or a reasonable likelihood of present ing gloss put the First Amendment and the and imminent threat to the admin a serious This, upon Supreme it Court. justice”). validity of a istration course, liberty we are not at to do. More prior restraint entered under Rule 23 must over, Act, Enabling the Rules 28 U.S.C. be tested the same standards utilized in 2072, explicitly provides that the Rules 23, (d) of Rule other contexts. Subdivision abridge, enlarge modify any “shall not court, discretion, its which authorizes the right.” Finally, substantive much of the actions, appropriate orders in class to make prohibited by communication the order is designed further “the fair and effi was constitutionally protected both and consist the action . . . .” Ad- cient conduct of purposes ent with the of the class action. visory Committee Notes to Rule 23. Like Marsh, 186, (3d Coles v. 560 F.2d See contempt power the common law at issue in Cir.), denied, 434 U.S. 98 S.Ct. Craig Harney, 67 S.Ct. U.S. (1977); 54 L.Ed.2d 479 n.30 infra. (1947), Bridges 91 L.Ed. 1546 v. Califor- nia, 86 L.Ed. 192 An exception to the constitu (1941), the court’s discretion under Rule 23 limiting prior tional principles restraints general authority regu- a facet is of its cannot be constructed on the foundation of litigation. late the To the ex- conduct of asserted abuses in class actions implements tent that Rule 23 the class ac- generally. place, hypothesis In the first device, unique litigation tion as a that dis- occur such frequency abuses with broadened, may correspondingly cretion impact judicial prophylactic interven recognize management pow- and we broad required must be examined with But, ers of the under while scrutiny hypotheses. Rule same other factual legislative judge’s enactment alter the Neither the Constitution nor law, authority court’s under it duty finding common of constitutional fact is sub upon constitutionally protect- application pejorative not encroach sumed tempt expression inapposite. dealing sanctions for free that is sub- and its antecedents We are sequently prejudicial right reporters gather deemed to the administra- here not with the justice. contempt tion of Because the in those right information but with the of individuals to explicit cases was not based on violation of an See, g., KQED, disseminate it. Houchins v. e. order, however, problems the cases “deal with Inc., 57 L.Ed.2d 553 substantially by pri- different from those raised Gurney, U. S. v. 558 F.2d 1202 Stuart, or restraint.” Nebraska Press Ass’n v. 1977), cert. n.5, 427 U.S. at 557 96 S.Ct. at (1978). Protecting secrecy by 56 L.Ed.2d 59 n.5; Rodgers L.Ed.2d at 696 see also v. U. S. excluding press equated to be is not Corp., (3d Steel 1008 n.15 Sack, preventing publication. Principle Schmidt, 1976) If); (Rodgers Nebraska Press Stuart, Nebraska and Press Association v. 29 Expansion Association: An of and Freedom Stevens, (1977); Stan.L.Rev. 428 Some Theory, of Contraction 29 Stan.L.Rev. 472 Rule, Thoughts About A General 21 Ariz.L.Rev. Thus, (1977). the Manual’s conclusion that (1979). Craig Bridges suggested and authorize the or- der, (1977 ed.), Part 1.41 n.33 is § mistaken 29. The district never a class in court certified prior insofar as the order is a restraint and Arguably this case. broader a court have by governed stringent a more standard. power puta- over an actual class action than a Wilson, Control of Class Action Abuses action, presence tive class but the or absence of Communications, Through Regulation of materially certification does not affect the con- (1975). Reports Class Action controlling. siderations that we as view DePasquale, We also find Gannett v. Co. (1979), 61 L.Ed.2d 608 actions, administering tends in class the everything that Not

word “abuse.” identity, than and standards the experience less convenient of to action make class bar, necessity is an manage, lawyers, to the ideal, difficult the mores or more is true of such activities discovery many The same others. None of “abuse.” for and funds, clients, com- or or major potential of solicitation the four abuses listed support, may be constitutional- munity that presents any or the Manual direct immedi- some, may but, at to ly least protected litigation threat in case. ate The fre- marginally ethical.30 appear only protected is here un- of clients Solicitation in genuine abuses quency and the effect of pp. and 471- der Button Primus. See not revealed general in are class actions supra. possibility of solicitation us, and known to empirical made any data by affidavits. See of funds is controverted in their individual judges may widely differ opt-out requests of supra. n. Solicitation recog- expressly The Manual assessments. 23(b)(2) not this Rule case. relevant to is a class action that nizes “abuse” in Finally, nothing justifies any inference occurrence, exception and not rare likely are to this case that communications rule: status, ef- “misrepresent purposes and „It however, that, noted, general- must . and of fects of the . . action . in class ly, the of the courts experience Court orders therein.” [the] The afore- actions has been favorable. in exceptions are the mentioned abuses prerequisites to There are other litigation action rather than class It justification of a restraint. must Nevertheless, support the idea rule. broadly. Rather it “must be sweep too guard against it is appropriate upheld if drawn cannot be narrowly and relatively of these rare abuses occurrence having alternatives are available reasonable by local rule order. impact a lesser on First Amendment free Manual, I, 1.41, (1977ed.). CBS, Its p. 31 Young, Part v. doms.” Inc. anticipate is that it is 1975); rationale desirable also Press see Nebraska infrequent prevent and these occurrences Stuart, supra; Carroll Association they happen.31 Anne, before Commissioners Princess 21 L.Ed.2d event, potential abuse ration- There a total ban are alternatives that a requirement ale is at odds supra; Develop n.13 communications. See justified exception- in restraint is Actions, 89 Harv. direct, ments in Law—Class by showing al and circumstances 1318, 1600-1604 Wilson, L.Rev. Con irreparable harm. Whether immediate and Through Regu trol Class Action Abuses showing such a can be made be affect- Communications, Action lation of 4 Class ed host the occurrence of by a of factors: it, Reports The order before us composi- misconduct or the threat class, suppresses essentially everything, and one tion and size the nature of the speech claim, policies seeking right his the historical of the district to exercise Marsh, Cir.), (3d aging participation plaintiff’s In Coles race/sex dis- claim the district court crimination (1977), L.Ed.2d 479 power race/sex discrimination had no to restrain them. case, employment the basis for an order banning plaintiff her communication Developments, Compare Bulletin of Recent lawyer plaintiffs deposition was she in which Complex Aug. Litigation, Manual for indicated she had contacted would p. 7: potential continue contact class members that, Experience continues to teach because hope interesting participat with the them in ever-present vast and ing in the suit had the NAACP to contacted through abuse of the action unauthor- otherwise, support, enlist its financial and many unpredictable ized communications organizations proposed to for the contact other forms, dangerous it is await occur- purpose. rejected the same The Third Circuit trying it. rence of an abuse before correct argument that these were abuses and held purposes effectuated Rule 23 encour- complementary. and No are cumulative petition the court.32 must association offered, made, standpoint, grievant’s or even From the showing has been “[u]nder circumstances, with lesser im- administrative reasonable alternatives that some pact preferred are unavailable. over the may highly route be may the reverse under others litigatory; “must have Finally, the restraint be true.” procedural safe accomplished with been danger suppress n.26, Alexander v. guards quoting that reduce Id. at 848 & speech.” constitutionally protected 36, 44, ing Co., 415 Gardner-Denver U.S. Promotions, Conrad, v. Ltd. 147, (1974), Southeastern 1011, 1017, 39 L.Ed.2d S.Ct. 1247, 559, 95 S.Ct. at supra, 420 U.S. Agency, Railway Express and Johnson v. are none here: no at 459. There 1716, 1720, Inc., 421 U.S. evidence, potential abuse way no to test the (1975). Rodriguez 44 L.Ed.2d particular abuses premise, findings no (5th Freight, Motor 505 F.2d 40 East Texas threatened, and no conclusions present or 1974), grounds, 431 Cir. vacated on other desirability of concilia (except law as to the 395, 97 52 L.Ed.2d 453 U.S. S.Ct. proce tion). Obviously, there never can be (1977), possible we commented on the diver- by rule or order safeguards if dural remedy- governmental interests in gence of every restraint is directed wholesale discrimination and the in- ing employment escape its are able to and those restrained who were the vic- terests of the individuals be showing good cause to impact only by of discrimination: tims vagaries argu of an risking the excepted or willing be While the Government good faith defense. able prompt, and compromise gain in order to for the remaining justification nationwide, relief, private plain- perhaps judge’s reference to his is the district tiffs, compensa- more concerned with full settlement encourage private obligations to members, willing to tion for class be Allegheny- charges. U. S. of Title VII full restitution. hold out for (5th Industries, 517 F.2d Ludlum the lawsuit Id. at 66. The choice between denied, 1975), cert. pay offer and accepting Gulf’s back The no 48 L.Ed.2d S.Ct. release was for each black giving general judicial recogni gave tice sent the clerk The court could not employee to make. agreement and ex tion to the conciliation him, freight- should it have make it for nor employees which during the time tended ban ed his choice with an across-the-board offer, while at the same accept could Gulf’s restricted his access to information that pendency of this giving time notice of concerning the choice. advice But, Allegheny-Lud as we noted suit. lum, the dis We therefore hold restricting communica trict court’s order responsibility for enforcement

the “final their counsel with actual by parties with federal of Title VII is vested unconsti potential class members is an courts,” legal . . . various [T]he holding This restraint.33 discrimination tutional employment remedies for 49 L.Ed.2d 1204 Even is inevitable S.Ct. It is obvious that overbreadth system by plenary legitimate governmental purpose are under a which restraints “cannot every automatically by imposed pursued by broadly rule or order in stifle funda- means class action. actual personal the end can be mental liberties when Tucker, narrowly achieved.” Shelton v. more we the order is a 33. While hold 479, 488, 81 5 L.Ed.2d 364 U.S. restraint, unconstitutionality of the order Village Schaum- see also ground does rest on that alone. Even un Environment,- berg a Better v. Citizens for analysis der the more relaxed accorded subse -, 63 L.Ed.2d 73 pass quent restraints the order fails to constitu (restriction purpose be suffi- invalid if “could vague muster. Much of the order is tional ciently less destructive of served measures supra; Chicago see also overbroad. See n.26 Moreover, interests”). First Amendment Bauer, Lawyers Council of was is- under which the order circumstances 1975), 478 VACATED, unnecessary for us to consider members is judgment it

makes violates the First the order whether district court and REVERSED rights of either Amendment associational case is court REMANDED the district attorneys. their plaintiffs individual proceedings opinion. consistent with this 163; I, 508 F.2d at Rodgers supra, Binstein, Cities, v. su Inc. Western Great TJOFLAT, Judge, Circuit with whom 834; cf. v. NAACP F.Supp. 476 pra, BROWN, GEE, JOHN R. HENDERSON Patterson, 449, 357 78 ex rel. U.S. Alabama REAVLEY, Judges, join, spe- and Circuit (1958) 1163, (requiring 1488 2 L.Ed.2d S.Ct. cially concurring; membership lists in NAACP submit I I concur because result rights); fringes associational Shelton v. majority’s inexcusably believe the analysis 247, Tucker, 479, L.Ed.2d 364 81 S.Ct. 5 ignores principle that “a federal court organizations to list of (requiring 231 should not decide federal constitutional in belongs or contributes which individual questions dispositive where a nonconstitu v. fringes rights); Robinson associational tional ground Hagans is available.” v. La 1978) Reed, (requiring (5th 566 F.2d 911 vine, 1372, 1384, 94 415 U.S. S.Ct. about beliefs or associa disclosure facts (1974). 39 577 The non-constitu associa infringes rights privacy and tions ground dispose tional that would of the ease tion).34 is that court its discre district abused violates Rule 23 VII. The order when, any findings without making fact, restricting entered the order it hold that the order vio Because we parties’ counsel’s with and communications Amendment, it lates the follows that First potential actual class members who were “appropriate under it cannot order” parties. formal 23(d) of Civil Rule of the Federal Rules Procedure.35 majority’s analysis The begins with an of the order. restricting examination “basis” of the

The order the district opinion immediately plaintiffs rejects the notion by named communications have their counsel actual and class the district court’s order could with previously Manual itself the risk that unsworn alle- Company’s rested on Gulf Oil court misused its in entering discretion the gations plaintiffs’ attorneys that one of the Co., in order this case. Bernard v. Gulf Oil improperly had communicated actual 1249, 1262-76, vacated, 596 F.2d 604 F.2d class who were potential or members (5th 1979)(Godbold, J., Cir. concurring parties: “We that formal can assume the part Therefore, part). in and in dissenting court its ground district did not order on a we need not reach the constitutional ques- that the of charges conclusion misconduct tion. Nothing made Gulf were true. in its 23(d) permits courts, Rule district in con- . . order indicates that it did . .” ducting actions, class to “make appropriate district 466. Even if the court Ante at . (3) imposing orders: . . conditions on its had based order on a conclusion that representative parties the . . . .” Al- charges true, opinion Gulf’s were the rea- though provision gives this a district court sons, “such conclusion would have been power” “extensive manage action, a class procedurally improper without and eviden- Miller, Wright 7A C. & A. Federal Practice support.” Therefore, tiary majori- Id. the and Procedure (1972), 1791 at 192 the ty “presumes” that the district court must that pursuant orders a court issues to the its the “upon have based order rationale of certainly subject rule are to review for Litigation Complex the that [Manual ] abuse of In discretion. re Nissan Motor the has the power court to enter a ban on Corporation Litigation, Antitrust communications actual as a As this prophylactic class action measure court against potential Nissan, observed in “Appellate abuses envisioned the review is n Id. necessary Manual.” rights assure that the of absen- tee members are not inundated in the Logic jurisprudence and sound insist that of a supervision.” wake district brisk court’s majority procedural the next the consider 23(d) Id. The of reviewability rule . orders is propriety support of evidentiary an or- implicit language also of the rule. solely der rationale founded on the The district issuing court is limited to those Instead, of model order the Manual. the that “appropriate.” orders are If this con- opinion inexplicably leaps question the straining language effectual, to be rule constitutionality sug- the of the Manual’s 23(d) orders must reviewable gested the order holds that order is an appeals. unconstitutional courts restraint. Since the court’s entirely order was based district 23(d) reviewable, Since rule are it orders the model order and policy considerations follows that such must be orders based on Manual, set out it follows findings of fact: court’s district order is unconstitutional as [Ijssuance of an . . . without opinion belatedly and, well. The then an adequate statement of the reasons for light disposition of the constitutional the order does not meet minimum stan- issue, gratuitously turns somewhat to the procedural dards of regulari- fairness and question procedural propriety, concluding ty. . . . does an Nor order issued that an unconstitutional order cannot be without a deliberate articulation of its meaning “appropriate” within the of Fed.R. rationale, appraisal including some 23(d). Civ.P. decision, underlying factors court’s view, my policy avoiding federal disciplined allow for a and informed re- unnecessary rulings requires constitutional view of the court’s discretion. court reserve consideration of the Sargeant Sharp, (1st problems first amendment district 1978) (citations omitted) (vacating court’s order raise first the and address remanding denying court’s order at- district question authority the district court’s torney rights fees to civil plain- successful per- issue the order. As Godbold Judge tiff). 52(a) (“in granting his Cf. Fed.R.Civ.P. suasively dissenting demonstrates in decision, opinion panel interlocutory injunctions refusing district Co., findings Bernard v. Gulf Oil 596 F.2d at set forth the similarly shall court J., (Godbold, dissenting). of law which consti- fact conclusions action”). its grounds tute the notes, majority opinion As the district by the Sar principle restated general without the order in this case entered any court order that applies to geant court making any findings of fact. The of con the court’s assessment is based on presented that restrict- Gulf “evidence” I flicting policy considerations. evidence lead to abuses ed communications would suppose principle that the no to see reason on allegations was unsworn of misconduct request a A for rule is not here. pertinent and part attorneys., one of class the of the be communications 23(d) restricting order charge the un- attorney the denied accused class potential and or actual tween counsel if had der oath. Even the district court essentially from different plaintiffs is not charges, its on Gulf’s explicitly based order inj preliminary ordinary petition for an an entry I would that of the order was find pro like those Communications ground of the that Gulf unction.1 abuse discretion on court’s order certain by the district hibited conceivably proof. had not met its burden of abuse, but ly potential for create It is still more clear that the Court abused example, such For also be beneficial. by issuing the without its discretion order communications, many “in instances serve elucidating any factors that contributed Rule 23 ‘purposes the to effectuate its decision. in participation encouraging common [a findings leads any The absence of of fact ” Co., v. Gulf Oil Bernard lawsuit].’ majority the the district conclude J., (Godbold, dissenting) (quot F.2d for court its on the Manual founded order (3d Marsh, ing Coles Complex ra- Litigation’s model order and Cir.), view, my the Ante at 466. tionale. it Just as if had support adequately record does not this injunction, for request been faced with an cited Manual clusion. The district court the ruled the district court should have order, justify the the imposition not restricting for order com Gulf’s motion plaintiffs’ from but defend order weighing, on the munications after First Amendment attack: order “[T]his record, potential for abuse that would comports in the requisites with the set out generated by permitting be free communi Complex Litigation, Manual Section parties cations class mem between and 1.41, p. specif- 106 CCH Edition which against flowing bers the benefits from such ically constitutionally protected exempts ordinary communications. As when the substance of such communication request temporary injunc involving a for a communication is filed with the Court.” tion, proof the burden of be on the would Record at 128e. The court’s mere mention- here, Gulf. To meet its burden of movant — ing obviously of the Manual does not consti- proof, would have to make “a factual Gulf tute the of rationale deliberate articulation unsupervised . showing . . com- necessary any possi- that is if is to there between counsel and named munications bility meaningful review. plaintiffs on one hand Moreover, even the court had relied have materialized if members on other explicitly on the of the Manual’s into actual abuses the class action device rationale order, imminently support or that are threatened.” model order abuses notice, limits, point nicely upon requirements Judge in time Godbold makes this his harm, panel proof public dissent: of likelihood inter- requirements, est and similar familiar disparity was done The wide between what injunction this court would have reviewed an procedures judicial is here and normal dem- standards, especially since under the usual question: posing onstrated “What rights constitutional are involved. happened have if Gulf had asked for a would Co., Bernard Gulf Oil injunction temporary imposing exact re- 1979) (Godbold, vacated 604 F.2d 449 imposed strictions that were in this case?” I J., part dissenting part). concurring in in would insisted believe that have FAY, Judge, Circuit with whom COLE- would have been entry of the order court’s RONEY, MAN, is Judge, The Manual not Circuit improper. Chief procedurally force of a authority with the special concurring statement: Judge, join, a source There- procedure. of civil or rule statute majority adopts of the en banc court its re- fore, not evade a trial court could I, panel II III parts opinion fact on the findings of to make sponsibility found at 596 F.2d 1249. As to the order the Manual. In by relying on simply record par- named dealing with communications words, an abuse of it would have been other ties and their counsel with actual or adopted the to have for the court discretion party, formal potential class member a court apparent conclusion Manual’s adopt parts Judge I I and II of Godbold’s appro- restricting communications concurring part and dis- original opinion, This is because every class action. priate senting part panel majority. from the analysis and validity of the Manual’s my opinion 1262. In the order 596 F.2d at undisputed not the sort of conclusion is Rule 23 “inappropriate” was under and an justify what would knowledge that would abuse of discretion in this case. So conclud- be, effect, there is judicial notice. Since ing, I not reach the constitutional would communications be- to believe that reason issues. potential class counsel and actual and tween always abusive of the are not members device, general Manual’s action “[t]he HILL, Judge, Circuit dissent- JAMES C. flowing from abuses discussion ing: is no substi- communications unrestrained agree restricting I cannot that an order inquiry into the harms tute for reasoned attorneys and their clients in the conduct particular facts of each and benefits on the ongoing lawsuit should connection with an Co., 596 F.2d at case.” Bernard Gulf Oil be scrutinized under the First Amendment. J., (Godbold, dissenting).2 of a during pendency I believe that stated, I have I would For the reasons may speech restrict judge lawsuit the court abused its dis-

hold that the district setting would conduct which in a different restrict- when it entered cretion A protected by be the First Amendment. I think this conclusion ing communications. precedent requires which that such orders unavoidable, order is viewed whether the Amendment be scrutinized under the First judge’s trial assessment upon as based potential for dangerous is a one with the him or as particular case before majority. consequences not intended general Manual’s discussion of on the based be propriety of this order should Therefore, regard I must potential abuses. appropriateness 23’s tested under Rule majority’s analysis as first amendment case, I facts of this standard. Under the a needless excursion into a difficult appropriate. the order was law.3 would hold that little-explored area of constitutional through serving policy course, process cial the rule 23 2. Of there are some communications restrict, encouraging participation in a law- interests of the common making justice, supra. p. find- administration of without suit. See ings considering partic- or even the facts of the judge may example, cer- ular case. For a trial majority Although the concludes that the or- tainly jury not to dis- instruct members der in this case was an unconstitutional anyone the trial is in cuss a case with while restraint, opinion certainly pre- does not progress. between this The crucial difference entering court’s an order similar clude a district that, example first case us is before making after the Manual’s model order aside, could amendment considerations there finding majority proper facts. jury purpose by permitting the be no served only restrictions of communications demns trial, during discuss a while it is not case po- on the foundation of asserted “constructed open question such communications generally,” ante abuses in class actions tential always pose threat would an imminent “prior admits that a restraint” at justice. other fair administration On the direct, showing justified “by imme- hand, enjoined in like those communications irreparable Ante harm.” diate judi- present might actually benefit sued do not meet of the articu- notes governing barring lated standards restriction of consti- with class contact member-witnesses See, tutionally protected expression. g., Vil- may process: e. violate due lage Schaumberg a Better v. Citizens for cases, many such members will Environment, (regulation “intimately supra re- knowledge of facts the liti- have relevant interests”); governmental lated to substantial gation require party develop and to 105, 326, Indiana, v. 38 Hess 414 U.S. S.Ct. without contact with such witnesses (1973) (speech pro- L.Ed.2d 303 “intended to may process. constitute a due well denial of duce, produce, likely imminent disor- I, 1.41, Manual, p, (1977, carried Part Ohio, der”); Brandenburg v. ed.). forward from (1969) (speech “bri- 23 L.Ed.2d Additionally, wheth- we have not considered J., action”) (Douglas, gaded concurring); with er the order violate the Fifth Amendment California, Bridges v. 314 U.S. 62 S.Ct. compel- privilege against self-incrimination (1941) (“clear present 86 L.Ed. 192 ling pro- disobeyed have those who it to danger”); Chicago Lawyers Council v. “ describing their duce testimonial evidence Bauer, supra (speech pose must ‘serious White, transgressions. See U. S. 322 U.S. imminent interference fair threat’ of with the justice”). 88 L.Ed. U. S. administration of Authement, (5th 607 F.2d 1129 pretermitted 34. We have also discussion access to order’s limitations on and dissemina conflicting have con Other circuits reached discovery possibly implicat tion of materials as propriety 23 of clusions as to the under Rule Amendment, Halkin, ing both the First In re I, Compare supra Rodgers similar orders. 188-89, process F.2d at due Corp. Interchange Engine In re Motors General Amendment, clause of the Fifth Gouldman Cir.), Litigation, 1138 n.57 Houston, Seligman Inc., & Latz of 82 F.R.D. (S.D.Tex.1979). See Waldo v. Lake L.Ed.2d 95 Estates, Inc., F.Supp. (E.D. shore La.1977); Note, 88 Harv.L.Rev.

Case Details

Case Name: 23 Fair empl.prac.cas. 20, 23 Empl. Prac. Dec. P 31,029 Wesley P. Bernard v. Gulf Oil Company

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 19, 1980

Citation: 619 F.2d 459

Docket Number: 77-1502

Court Abbreviation: 5th Cir.