Kаthleen HACKETT, on behalf of herself and all others similarly situated, Appellant, v. GENERAL HOST CORPORATION et al.
No. 19320
United States Court of Appeals, Third Circuit
Argued Oct. 21, 1971. Decided Jan. 14, 1972.
455 F.2d 618
Before ALDISERT, GIBBONS and MAX ROSENN, Circuit Judges.
[3] Petitioner contends, however, that he was actually discriminated against by the Fund because seven other persons with post-1952 employment histories similar to his received pension benefits on the basis of the presumption that they qualified for pre-1952 credits because they were Union members prior to 1952. The Board found that Mr. Pagel had not been the victim of discrimination because in all seven cases, the employees also qualified for benefits by virtue of having in fact worked in covered employment. The essence of Mr. Pagel‘s claim is that the discrimination lay in the requirement that he prove his entitlement, whereas Union members did not bear such a burden.8 But, there was no evidence that Union members not otherwise qualified received pre-1952 pension credits, nor was there evidence that Union employees situated similarly to Mr. Pagel received such pensions. Thus, the finding of the Board that Mr. Pagel was not the victim of actual illegal discrimination is supported by substantial evidence and will be affirmed.
It is clear that Mr. Pagel simply does not meet the Fund‘s lawful eligibility requirements. Therefore, he is not entitled to receive the pension for which he applied. Accordingly, the petition for review will be denied.
Seymour Kurland, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa. (Bernard Chanin, Donald E. Matusow, Philadelphia, Pa., on the brief), for appellant.
Henry T. Reath, Duane, Morris & Heckscher, Philadelphia, Pa., John H. Schafer, III, Covington & Burling, Washington, D. C. (Lovejoy, Wasson, Lundgren & Ashton, New York City, Gerald P. Norton, Washington, D. C., Pepper, Hamilton & Scheetz, J. B. H. Carter, Peter Hearn, Montgomery, McCracken, Walker & Rhoads, Charles A. Wolfe, Albert S. Shaw, Jr., Morgan, Lewis & Bockius, Benjamin M. Quigg, Jr., Peter C. Ward, Schnader, Harrison, Segal & Lewis, Arthur H. Kahn, Philadelphia, Pa., Kramer, Lowenstein, Nessen & Kamin, Geoffrey Kalmus, New York City, Dechert, Price & Rhoads, Henry Kolowrat, Philadelphia, Pa., on the brief), for appellees.
GIBBONS, Circuit Judge.
Kathleen Hackett, a consumer of bread purchased at retail, filed a complaint under Section 4 of the Clayton Act,
Mrs. Hackett‘s complaint was inspired by an indictment, United States of America v. General Host Corp., Crim. No. 23,200 (E.D.Pa., filed Mar. 13, 1968), which charged that the defendants conspired to fix the prices and terms of sales of bread in the Philadelphia market. The district court accepted a plea of nolo contendere to that indictment. There is pending in the district court a civil action Philadelphia v. General Host Corp., Civil No. 68-704 (E.D. Pa., filed Apr. 2, 1968) in which Philadelphia, on behalf of itself and various other public and private institutions, is seeking recovery of the damages of such institutional purchasers occasioned by the alleged price fixing conspiracy.
The defendants moved for a pretrial conference and a stay of all proceedings until the district court should, pursuant to E.D.Pa. R 45(c), determine whether the case should be maintained as a class action. See
“It is our considered opinion that under the facts of this case, the problem of management of the proposed class is clearly insurmountable. The class is so large that it would be unmanageable and could only result in knotty, complicated and unnecessary problems.
ORDER
The plaintiff‘s request for confirmation of her action as a class action is Denied.”
Mrs. Hackett then requested the district court to amend the July 30, 1970, order to set forth a statement, pursuant to
Mrs. Hackett then filed a notice of appeal. She contends that the July 30, 1970, order is a final appealable order within the meaning of
“. . . We can safely assume that no lawyer of competence is going to undertake this complex and costly case to recover $70 for Mr. Eisen.
* * * * * *
Dismissal of the class action in the present case, however, will irreparably harm Eisen and all others similarly situated, for, as we have already noted, it will for all practical purposes terminate this litigation. Where the effect of a district court‘s order, if not reviewed, is the death knell of the action, review should be allowed.”
370 F.2d at 120-121. (citations omitted)
The court in Eisen relied upon Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), as authority for its “death knell” rationale. In this circuit we have referred to the Cohen rule as the “collateral order doctrine,” and we have not been overly hospitable to requests for its extension. See e. g., Borden Co. v. Sylk, 410 F.2d 843 (3d Cir. 1969); but cf. Greene v. Singer Co., Civil No. 71-1835 (3d Cir., filed Nov. 2, 1971). We have not, however, ever been confronted directly with the problem of the appealability of a determination adverse to the confirmation of a class which leaves a single plaintiff to litigate a small claim for money damages.
Indeed no other circuit has had occasion either to adopt or expressly to reject the “death knell” rational.1 The experience of the Second Circuit has shown the application of the rule to be somewhat difficult. In Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert. denied, Troster, Singer & Co. v. Green, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969), Green had an individual claim amounting to less than $1000 for overcharges on publicly traded securities. The court held that an order dismissing the class action aspects of the complaint was appealable. In City of New York v. International Pipe and Ceramics Corp., 410 F.2d 295 (2d Cir. 1969) and Caceres v. International Air Transport Association, 422 F.2d 141 (2d Cir. 1970) where the individual claims of the plaintiffs seeking to represent a class were $1,560,000 and $150,000, respectively, the court declined to apply the Eisen rule and dismissed the appeal. Most recently, in Korn v. Franchard Corp., 443 F.2d 1301 (2d Cir. 1971), the court considered two appeals. In one the appellant Korn, whose individual claims totaled $386, appealed from an order revoking a class action designation. In the other, the appеllant Millberg, and her husband, who was acting as her attorney, had claims totaling $8,500. Millberg appealed from an order denying class action designation. Korn‘s appeal was held to fall within the Eisen rule while Millberg‘s appeal was dismissed. These results disturbed Judge Friendly, who in concurring wrote:
“Since I regard Judge Feinberg‘s opinion as correctly applying the present law in this circuit, I concur therein. However, despite the obvious appeal of the ‘death-knell’ doctrine, I am not sure it affords a rule that is truly workable or, indeed, is legally sustainable. If my fears should be realized, I might wish on some subsequent occasion to request that the court consider in banc whether we are not
obliged to formulate a rule that will avoid the necessity of making such ad hoc judgments as have been required in these and other cases and also will afford equality of treatment as between plaintiffs and defendants. Perhaps, before occasion for doing this should arise, we shall have received enlightenment from the Supreme Court.” 443 F.2d 1301 at 1307.
Judge Friendly‘s mention of equality between plaintiffs and defendants refers, of course, to the peculiarity of the “death knell” rationale that it operates only in favor of the plaintiff who has unsuccessfully sought to be designated as a class representative. It neither requires nor permits general supervision by the court of appeals over class action designations.2 Indeed the rule operates in a very narrow area.
First, Eisen does not operate at all in those cases in which federal jurisdiction depends upon jurisdictional amount. In Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1968) the Supreme Court rejected the contention that the revised
Secondly, Eisen is not needed to afford interlocutory appellate review in those cases in which the refusal to grant class action designation amounts to a denial of a preliminary injunction broader than would be appropriate for individual relief.
Thus the “death knell” rule would operate only in that narrow category of cases where the object of the suit is the recovery of money damages, and where a statute affords federal jurisdiction regardless of amount. This narrow category is, however, significant for consumer advocates. But even in this field, the “death knell” rationale, based upon the assumption that no competent lawyer would undertake a complicated case to recover a small amount of money, must be qualified by several considerations. A number of federal statutes provide for the award of counsel fees and costs.3 In-
This brings us precisely to the practicabilities of the operation of the “death knell” rule. It will operate primarily if not exclusively in that class of cases in which attorneys are willing to undertake on a contingent fee basis class actions for the recovery of money damages for claimed violations of federal regulatory statutes. These are chiefly the federal antitrust5 and securities6 statutes.
The chief policy argument in favor of a hospitable attitude toward such class actions is that they tend to reenforce the regulatory scheme by providing an additional deterrent beyond that afforded either by public enforcement or by single-party private enforcement. Viewed in this light the revised
One of these is certification pursuant to
The advantage of restricting interlocutory appellate review of
Nor may our decision in Greene v. Singer Co., supra be considered as reflecting any basic change in our attitude toward enlargement of the Cohen doctrine.13 In the Greene case we held that an order denying a defendant‘s motion to disqualify the plaintiff‘s attorney on the ground that he had previously represented the defendant in the matter which was the subject of the lawsuit was appealable under Cohen. Even that issue is a close one. See 9 J. Moore, Federal Practice ¶ 110.13 [10] at 189 et seq. The considerations favoring “collateral order” treatment in the Greene situation are different and more compelling than here. The decision appealed from in Greene allowed аn attorney who had switched allegiance to represent the plaintiff, subject only to a protective order. The attorney‘s duty of loyalty was the matter in issue on the motion to disqualify, a matter wholly separate from the merits of the lawsuit. Postponement of review of the order denying the disqualification motion until final hearing could have the effect of destroying the very subject matter—the duty of loyalty
This case could possibly be viewed as the reverse of an analogy to Greene since the decision refusing confirmation of the proposed class can be construed as one which, in effect, disqualifies Hackett‘s attorney from representing the one and one-half million other potential claimants.14 Looked at as an order disqualifying an attorney, the order refusing to permit a class action confronts us with some practical problems of standing. The one and onе-half million potential claimants are not before the court seeking the attorney‘s services. This contrasts with the Greene case, where the attorney‘s former client came before us seeking to preserve his duty of loyalty. Mrs. Hackett‘s disinclination to proceed with her lawsuit unless her attorney is allowed to represent many others besides herself does not move us to convert by an ipse dixit an order which as to her is clearly interlocutory into a final appealable order. We come down, then, to the question whether on the authority of Greene v. Singer Co., supra, or by a different ipse dixit we should recognize the attorney deprived of the quixotic opportunity15 of representing one and one-half million potential claimants, should be recognized as a private attorney general with standing of his own to appeal the adverse class action decision. When all is said and done this pragmatically is the core issue, though conventional pieties about the role of the legal professiоn might suggest its obfuscation. Realistically, when we are asked to grant interlocutory appellate review of an adverse class action determination we are asked to recognize a separate interest of the attorney sufficient to bring the class action determination within the “collateral order” doctrine, or to recognize the standing of the attorney‘s client to assert such an interest on his behalf. We decline to do either. Those typical consumer class actions in which the Eisen rule would be likely to operate involve areas of federal law in which public enforcement co-exists with private remedies. There is no compelling need to go beyond those inducements to the bar which already encourage a lively pursuit of private enforcement remedies.
One part of Judge Rosenn‘s dissenting opinion requires special comment, since it points up a difference in approach to the proper role in society of the limited resourсes of the judicial process. He says that despite the statute providing for attorneys’ fees in antitrust suits he:
“. . . cannot believe that a capable attorney would press forward a complex anti-trust action when the amount in controversy is nine dollars . . . Nor does the growth of public legal services, also cited by the majority, provide the means by which an individual litigant might secure legal representation. No publically supported legal service organization could explain or justify the time and effort required to press a nine dollar anti-trust suit.” (Dissenting opinion at 631) (footnotes omitted).
Judge Rosenn may well be right on both points. But, if so, the conclusion that the judicial process must therefore provide a mechanism, by making class action determinations appealable, whereby the lawsuit will be more attractive to attorneys, does not follow. If the public interest issue involved in the individual suit is so insignificant that neither a
There remains for consideration whether on this record we should treat Mrs. Hackett‘s notice of appeal and briefs as a petition for mandamus and grant relief under
In view of our conclusions on appealability we have no occasion to rule upon Mrs. Hackett‘s standing as a plaintiff under Hanover Shoes, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). That issue was tendered by the defendants as additional support for the district court‘s order.
The appeal will be dismissed.
MAX ROSENN, Circuit Judge (dissenting).
Almost 25 years ago, Mr. Justice Jackson was impressed by the formidable volume of judicial writing on the issue of “the finality of a judgment for purposes of appeal.” Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 508, 70 S.Ct. 322, 94 L.Ed. 299 (1949). Thе passage of almost a quarter of a century and the promulgation of the new class action
I share with the majority some of their apprehensions for the judicial machinery because of the burdens, pressures and problems generated by the new Federal Class Action Rule. I do not believe, however, that the fear of potential abuses of the new
I.
It is important to recharacterize the facts before us to show how they relate to the complex and confused question of “finality” under
THE COLLATERAL ORDER DOCTRINE
The Supreme Court in Cohen v. Beneficial Finance Co., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), held that a decision of a district court, requiring a plaintiff in a derivative action to comply with the New Jersey statute ordering a posting of a bond to cover expenses, was: “[an] order [that] . . . did not make any step toward final disposition of the merits of the case and [would] not be merged in final judgment. When that time comes, it will be too late effеctively to review the present order, and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably.” (Id., at 546, 69 S.Ct. at 1225) As a result, the order was considered “final” under
Subsequent cases clarified the scope of the Cohen rule. Swift & Co. Packers v. Compania Colombiana del Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950), held that the order of the district court vacating the attachment of a maritime lien was appealable under Cohen. The Court stressed two elements: (1) the issue was collateral to the merits; and (2) restoring the right to attachment and the lien at a later time “would be an empty rite.” (Id. at 689, 70 S.Ct. 861) Shortly thereafter, Roberts v. United States District Court for Northern Dist. of Cal., 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950), held the denial of a petition to proceed in forma pauperis collatеral and appealable under
So long as the decision affects the basic right of the litigant to proceed, or finally determines a claim separable from and independent of the substantive issues, so that a later review of it when an appeal is taken from the final judgment on the merits becomes an empty rite, the Cohen test is met. This element of irreparably affecting important rights of a party to the litigation has become a cornerstone of the judicial approach to collateral order questions.
More recently, in Diaz v. Southern Drilling Co., 427 F.2d 1118, 1123 (5th Cir. 1970), the Fifth Circuit noted that one important reason for allowing review of the default judgment against one of the parties in the case was that it affected the litigant‘s ability to “make important decisions about its further participation in this suit. . . .”
This approach to the appealability of a collаteral order under
I conclude then that when an order will irreparably affect the basic rights of a party and is sufficiently collateral to the merits that subsequent decisions will not involve this question, it has sufficient finality under Cohen to be appealable under
Furthermore, the district court‘s denial of the right to proceed as a class action has certainly affected the subsequent conduct of the litigation. Assuming that the suit will continue on the part of the appellant in her individual capacity, it is inconceivable that either the lawyers or the court will give a $9.00 suit the same consideration and attention due a class action involving hundreds of thousands of persons and many millions of dollars in potential damages. If nothing else, it would be a waste of judicial resources to allocate extensive time to anti-trust litigation over this paltry sum. Even if the appellant had the economic power and her lawyers the fortitude to pursue this complicated anti-trust action for $9.00 against this group of bakeries, there would be a strong impulse on the part of the appellees to settle it and not incur the heavy legal fees generated by such an action.
Should the plaintiff proceed to judgment in her individual capacity, the parties would be bound by it, absent error of law. To the extent that the denial of the class action will affect how the case is litigated, the damage will be irreparable. This court‘s reversing the denial of the class will not permit the parties to reopen the judgment on the merits. To the exent this possible result compels the defendants to expend large sums defending the action, although it be for only $9.00, they too have been irreparably damaged if on appeal we confirm the denial of the class by the district court.2
THE TERMINATION OF LITIGATION DOCTRINE
(The Dickinson, Gillespie, Eisen Formulation)
The second consideration referred to in determining “finality” of judgment is that the order refusing to confirm the class action effectively terminates the litigation. This definition of finality was first developed in Dickinson v. Petroleum Conversion Corp., supra, in which the Court had to decide whether an appellant had appealed in timely fashion from a decision of the district court. The issue turned on which of two decisions was “the final one” for purposes of the litigation. In the first decision, all of the party‘s rights were adjudged, but the court reversed decision on apportioning the fund generated by the judgment awarding damages. The appellant did not appeal the first order but waited for the second judgment. The Court balanced “the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay
The decision did not mention Cohen, although Cohen had beеn decided only a year earlier. This is understandable because Dickinson dealt with appellate review of the merits of the case, not the collateral issue. The considerations involved in such a decision are different than under the Cohen rule. Finality in Dickinson meant that the merits of the case, insofar as the appealing party is concerned, are effectively determined. The case, as a whole, is at an end for him. Review does not interfere with the district court‘s jurisdiction because there is, for all intents and purposes, nothing more for the district court to do.
This line of reasoning was reaffirmed in Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), in which the Court held that it had jurisdiction to review the denial of several causes of action under
Both of these cases illustrate that the Court was using a simple balancing of interests in determining when it should inject itself into appellate review of questions involving the principal matters in the case before the district court. Under this principle, “finality” meant a determination of whether the issue raised at an early stage of the trial was of such character as to effectively dispose of the merits of the case; it did not mean “finality” as used in the collateral rule test under Cohen.
Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2d Cir. 1966), followed and relied on the Dickinson-Gillespie formulation, but in a matter involving a question collateral to the merits of the сase. Judge Kaufman seems to have reasoned that because of the economic considerations involved in the size of appellant‘s claim, the denial of the class action was practically the final decision in the case, and therefore, it was proper to invoke the balancing of interests test to determine if this point was the proper place for the appeals court to step into the litigation. Piecemeal litigation seemed unlikely and the demands of justice in the case compelled Judge Kaufman to conclude
Subsequently, the Second Circuit commented upon Eisen in Caceres v. International Air Transport Association, 422 F.2d 141 (2d Cir. 1970). In explaining the history of the prior case, it stated that the earlier decision was based upon Cohen and Roberts, even though the court made perfectly clear that the test involved had nothing to do with collateral questions, but with Dickinson-Gillespie‘s balancing of interests test. Such a reinterpretation of the cases obviously was bound to cause confusion and the ultimatе obfuscation of Cohen and the collateral order rule. More importantly, it is clear that by the time the Second Circuit arrived at Caceres it no longer really struck a balance.3 Rather it had converted the Dickinson-Gillespie doctrine into one question: is there enough mon-
Such an automatic test, so far removed from the original balancing of the inconvenience of piecemeal litigation against the denial of justice, bothered Judge Friendly who concurred with great reservation. (443 F.2d at 1307). I agree that such an arbitrary formulation hardly illuminates the underlying issues. My Brother Gibbons’ discussion of whether Mrs. Hackett could continue this litigation in her individual capacity if she wished, illustrates the problems with the Korn test, and how arbitrary that test is. I believe the proрer procedure is to return to the principles from which Korn arose.
In fact, under either the Dickinson-Gillespie doctrine or under the simplified test of Korn, Mrs. Hackett has properly brought her appeal before this court. Suffice it to say at this point that under the present Second Circuit Korn test, if Eisen‘s $70 claim was too small to carry forward his class action, then this $9 claim is also too small.
More importantly, under the Dickinson-Gillespie formulation, if I analyze the balance of potential piecemeal litigation against the denial of justice, I must again conclude that Mrs. Hackett‘s appeal should be heard now. Although the majority strongly suggests that Mrs. Hackett could continue this case on her own, it is clear that the potential for piecemeal litigation here is small. She is unlikely to continue the litigation and that is all that is important in striking the balance. Moreover, there are strong questions of justice involved. When the
Finally, for purposes of properly understanding the distinctions between Cohen and Eisen, it is important to note what the cases did not say. Many of the Cohen cases involve situations which effectively terminate the litigation. For instance, in Roberts, the failure to be granted leave to proceed in forma pauperis was most likely to terminate litigation. However, in holding that the deniаl was appealable, the Court merely cited Cohen, which made no mention of the possibility that the collateral order would have ended the litigation. That omission is significant because the “importance” criterion established in Cohen left open the possibility of balancing such a factor. In fact, the collateral order in Cohen requiring posting of a bond presumably had precisely that litigation ending effect. (Note, Appealability, 70 Colum.L.Rev. 1292, 1304 (1970)). Although at least one Cohen case has weighed the “importance” question on the basis of its effect in terminating litigation (Redding & Co. v. Russwine Construction Corp., 135 U.S.App.D.C. 153, 417 F.2d 721, 726 (1969)), it should not generally be thought to be necessary to the Cohen test.
In any case, under either the collateral order doctrine announced in Cohen or the termination of litigation doctrine of Dickinson-Gillespie, I am compelled to find that the Supreme Court mandates the decision denying confirmation of the class be held appealable.
II.
The majority opinion suggests, in effect, that the refusal of the district court to confirm the class action does not necessarily terminate the plaintiff‘s suit; that although the class action may not be maintained, the suit may be pressed on an individual basis by Mrs. Hackett and others similarly situated. Reference is made to several federal statutes which provide for an award of reasonable attorneys’ fees should Mrs. Hackett, or others who follow, desire to press forward.
Indeed, the statute under which Mrs. Hackett proceeded not only provides for reasonable attorneys’ fees but also provides that one may sue “without regard to the amount in controversy.” Nevertheless, I cannot believe that a capable attorney would press forward a complex anti-trust action when the amount in controversy is nine dollars.4 If attorneys could be found willing to go forward on an individual basis with Mrs. Hackett‘s claim, and the claims of others who allegedly comprise the aggrieved class, dockets would indeed be intolerably overcrowded. Nor does the growth of public legal services, also cited by the majority, provide the means by which an individual
litigant might secure legal representation. No publicly supported legal service organization could explain or justify the time and effort required to press a nine dollar anti-trust suit. Moreover, publicly supported legal service organizations generally may not proceed on a contingent fee basis.5
The majority suggests that instead of allowing interlocutory appeal as of right we weigh the effectiveness of “alternative discretionary appellate remedies” for consumer class actions. As I have already indicated, the appeal before us is not interlocutory. Further, “the alternative discretionary appellate remedies” suggested offer little consolation to Mrs. Hackett since she has been denied by the district court the opportunity to use them. Nor do I see any necessity for restricting her to mandamus for appellate review. It has been sparingly applied for such purposes and I am not convinced that it is a reasonable alternative for even an interlocutory appeal. Moreover the variety and number of alternative remedies leaves no assurance that denial of appeal under
On the assumption that this is an interlocutory appeal and not an appeal from a final order, the majority expresses the fear that this court may be plagued by interlocutory rеview. Until we have further experience with class actions, it seems to me that this fear is premature. As the majority points out, its decision operates within a very limited sphere. Indeed, as they say, “no other circuit has had occasion to either adopt or expressly reject the ‘death knell’ rationale.” Moreover, anti-trust litigation seems to be growing slowly in comparison with other fields. For example, in terms of the civil cases commenced in the United States District Courts, civil rights showed an increase of 28.9% in
Some comment is in order on our recent decision in Greene v. The Singer Co., (Civil No. 71-1835, 3d Cir., Filed Nov. 2, 1971). Of course, I agree with the majority that the Greene case differs from the casе at bar in terms of the factual situation presented. However, I cannot agree that the rule which dictated our conclusion in Greene would warrant a different decision in the case now before us. Greene was, in fact, a reaffirmance of the rules which were first articulated in Cohen, and which have been discussed above. As we said in Greene: “To require appellant to await a final judgment on the merits before testing the legality of the order denying the disqualification may, for practical purposes, deny it the reality of appellate processes.” (Slip opinion p. 3). Similarly, in the case now before us, as I have already pointed out, denying appeal in this case will undoubtedly “for practical purposes, deny [Mrs. Hackett] the reality of appellate processes.”
It should also be noted that the rationale which motivated the Greene case has been impaired by the decision which the majority takes today. The court in Greene did not decide that a fаilure to allow appeal would deny appellant the “reality of appellate process.” It found only that it might deny appellant that reality. It did not hold that if the appeal did not go forward, appellant would suffer irreparable injury; it held only that
there existed “the possibility of irreparable injury.” (Emphasis supplied) Mrs. Hackett has at least shown this much.
One final point deserves attention. While the small size of these claims, considered individually, means that for all practical purposes this law suit ends here, the small size does not mean that these claims are insignificant. In fact, this case may illustrate the usefulness of a class action in the litigation of small consumer claims.8 Bread is an essential household staple which is purchased regardless of the economic level of an individual family. Those whose incomes are meager feel the pinch of price fixing in such an area. Yet they are the ones who most need to combine resources in order to pursue their rights in the courts.
I would hold thеrefore that the order of the district court entered July 30, 1970 comes within the collateral rule of Cohen, supra, or in the alternative is final under Dickinson-Gillespie, and, therefore is an appealable order.