Sperling v. Hoffman-La Roche Inc.

• Decision Date: 30 November 1988
• Docket Number: HOFFMAN-LA,88-5214,Nos. 88-5104,s. 88-5104
• Citation: 862 F.2d 439
• Parties: 48 Fair Empl.Prac.Cas. 1010, 48 Empl. Prac. Dec. P 38,460 Richard SPERLING, Frederick Hemsley and Joseph Zelauskas, individually and on behalf of all other persons similarly situated v.ROCHE INC., a New Jersey corporation, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 439

862 F.2d 439

48 Fair Empl.Prac.Cas. 1010,

48 Empl. Prac. Dec. P 38,460

Richard SPERLING, Frederick Hemsley and Joseph Zelauskas,

individually and on behalf of all other persons

similarly situated v. HOFFMAN-LA ROCHE INC., a New Jersey corporation, Appellant.

Nos. 88-5104, 88-5214.

United States Court of Appeals, Third Circuit.

Argued July 13, 1988.

Decided Nov. 30, 1988.

Rehearing Denied in No. 88-5104 Jan. 9, 1989.

John A. Ridley (argued), Richard S. Zackin, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, N.J.; Harold F. Boardman, Associate Gen. Counsel, Hoffmann-La Roche Inc., of counsel, Nutley, N.J., for appellant.

Ben H. Becker, Schwartz, Tobia & Stanziale, Montclair, N.J., Leonard N. Flamm (argued), Hockert & Flamm, New York City, for appellees.

Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Lorraine C. Davis, Asst. Gen. Counsel, Gale Barron Black, E.E.O.E., Washington, D.C., for E.E.O.C. as amicus curiae.

Before SLOVITER, SCIRICA and WEIS, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. Introduction

This appeal is before us following the district court's certification pursuant to 28 U.S.C. Sec. 1292(b) of its order giving court authorization to plaintiffs in an action under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq., to send a notice to those members of the asserted class who have not yet opted in to plaintiffs' suit. The district court, Judge Harold A. Ackerman, identified the controlling question of law as to which there is substantial ground for difference of opinion as whether, in a case governed by 29 U.S.C. Sec. 216(b), "the district court possess[es] the authority to facilitate notice of the action to ... persons who have not yet filed consents to join the action." App. at 715. This court granted leave to appeal and there is no dispute as to our appellate jurisdiction over this portion of the order, which is before us in No. 88-5214.

The defendant-employer Hoffman-La Roche Inc. (Roche) also moved in the district court to vacate the approximately 400 consents to enter the suit which have already been filed, arguing that those consents were a result of plaintiffs' allegedly "inflammatory, misleading and incomplete" letter sent March 7, 1985, prior to any court authorization. Appellant's Brief in Opposition to Appellees' Motion to Dismiss at 2. The district court denied the motion and thereafter declined to certify that portion of its order under section 1292(b), expressly holding that the controlling question Roche identified as warranting immediate appellate review was not a controlling question of law which offers a substantial ground for difference of opinion.

Roche then filed a petition in this court for a writ of mandamus seeking to reverse the district court's refusal to invalidate the consents. We denied the petition. Roche has, however, filed an appeal from the court's order denying its motion to vacate. Plaintiffs have moved to dismiss that appeal, before us as No. 88-5104. We will consider our jurisdiction over that appeal following a brief summary of the facts and procedural posture of the litigation.

II. Facts and Procedural History

On February 4, 1985, defendant Roche allegedly fired or demoted some 1,200 workers at its various plants, primarily at two locations in New Jersey, pursuant to a reduction in work force. At the initiative of one or more of the named plaintiffs in this action, a group of employees who had been affected by Roche's reduction in force, with the assistance of counsel, formed a group known as Roche Age Discriminatees Asking Redress (R.A.D.A.R.), which initiated this class action against Roche under the ADEA.

R.A.D.A.R. and its counsel drafted a letter to former employees whom it had identified as within the protected class informing them of the action that had been brought against Roche and inviting them to submit their consents to join the action as plaintiffs. App. at 99-102. The letter was mailed to approximately 600 people on R.A.D.A.R. stationery and signed by Richard Sperling, a named plaintiff in this action. Through R.A.D.A.R.'s letters and "informal networking," over 400 consents were received and have been filed with the court.

Plaintiffs filed a motion requesting the district court to send out notice of the suit to putative class members who had not yet filed consents to join the action. See App. at 627. The court held that it was "permissible for a court to facilitate notice of an ADEA suit to absent class members in appropriate cases, so long as the court avoids communicating to absent class members any encouragement to join the suit or any approval of the suit on its merits." Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 402 (D.N.J.1988). The court reviewed the language of 29 U.S.C. Sec. 216(b) and its legislative history, finding "nothing in [that history] which might apply to the issue of court-facilitated notice, at least when it arises in a case other than a portal-to-portal compensation case." Id. at 402-03.

The court noted that the ADEA is a "remedial statute" and that because of that remedial purpose, court facilitation of notice would help avoid a situation where a remedy for age discrimination is afforded only those who "are already known to their 'champion.' " Id. at 403 (quoting Woods v. New York Life Ins. Co., 686 F.2d 578, 581 (7th Cir.1982)). It also believed such notice would avoid a burden on the court of "a potentially high number of separate ADEA suits." 118 F.R.D. at 403. The court further noted that the advantages of court-authorized notice in this case would be to avoid further arguments between the parties on the propriety of the content of notice that was sent out and to enable the court to set a final deadline for consents, once the court-authorized notice had been sent. Id. at 404.

The court then prepared the content of the notice that was to go out, which it appended to its opinion, id. at 415-17, and determined that this notice could then be sent out by plaintiffs or their counsel with the following statement attached: "This notice and its contents has been authorized by the federal district court, Hon. Harold A. Ackerman, Judge. The court has taken no position regarding the merits of the plaintiffs' claims or of Roche's defenses." Id. at 417.

In the same order, the district court denied Roche's motion seeking to have the consents already filed voided because of the allegedly prejudicial nature of the March 7, 1985 letter. The court held that the letter was not flawed in any way that vitiated the consents obtained through it, and that the individuals who had elected to opt in to the action had received "sufficiently full and effective disclosure, such that their decisions may be considered informed." Id. at 410.

Roche then sought certification of both the portion of the court's order that approved the notice and the portion that refused to void the consents. As noted above, the court certified the former and declined to certify the latter.

III.

Appellate Jurisdiction Over Roche's Appeal of The District

Court's Refusal To Void The Consents

Roche argues that the district court's order denying its motion to void the consents is a final collateral order reviewable at this time under 28 U.S.C. Sec. 1291 or, in the alternative, that we can review it along with our review of the order certified under 28 U.S.C. Sec. 1292(b) on the ground that it is part of the same "overall issue" regarding joinder in ADEA cases. Appellant's Brief at 3.

A. Jurisdiction as a Collateral Order

As the Supreme Court has repeatedly explained, an order qualifying as a collateral order must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action" and (3) "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (footnote omitted); see Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430, 105 S.Ct. 2757, 2760-61, 86 L.Ed.2d 340 (1985); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). It is apparent that the order declining to void the consents fails to satisfy the second and third requirements.

Roche seeks to meet the separate issue requirement by arguing that "this Court need not concern itself with the merits of plaintiffs' age discrimination claims in order to determine that the manner in which the claims of the 'opt-ins' have been solicited was improper and requires the invalidation of the 'consents' heretofore filed." Appellant's Brief in Opposition to Appellees' Motion to Dismiss at 9. However, elsewhere in the same brief Roche explains that one of its objections to the March 7th letter is that "the overall impact of the letter was to solicit claims of age discrimination which are not 'well grounded in fact.' " Id. at 4. A determination whether the claims made are well-grounded is the essence of the merits inquiry, and therefore we cannot agree that the validity of the consents and the appropriateness of the solicitation letter can be divorced from the merits of the underlying claims. See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1116-17 (3d Cir.1986),cert. denied, --- U.S. ----, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987) (district court's refusal to bar publication of discovery documents which allegedly presented an unfair picture of the defendant was not a collateral order because an inquiry into whether the materials were "unfair" involved an inquiry into the merits of the case); New York v. United States Metals Refining Co., 771 F.2d 796, 800 (3d Cir.1985) (protective order temporarily prohibiting release and requiring confidentiality of discovered documents which party claimed were one-sided and prejudicially unfair not collateral final order because inquiry would "implicate the merits").

...