Dierks v. Thompson

• Decision Date: 08 August 1969
• Docket Number: No. 7293.,7293.
• Citation: 414 F.2d 453
• Parties: Walter W. DIERKS et al., Plaintiffs, Appellees, v. Rupert C. THOMPSON et al., Trustees, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

414 F.2d 453 (1969)

Walter W. DIERKS et al., Plaintiffs, Appellees, v. Rupert C. THOMPSON et al., Trustees, Defendants, Appellants.

No. 7293.

United States Court of Appeals First Circuit.

Heard June 4, 1969.

August 8, 1969.

Jay H. Topkis, New York City, with whom Edward F. Hindle, Providence, R. I., Allan Blumstein, David A. Rahm and Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison, New York City, were on brief, for appellants.

Leon L. Rice, Jr., Winston-Salem, N.C., with whom Joachim A. Weissfeld, Earle McGee Rice, Anderson, S. C., Womble, Carlyle, Sandridge & Rice, Winston-Salem, N. C., and Graham, Reid, Ewing & Stapleton, Providence, R. I., were on brief, for appellees.

Jerome P. Facher and Hale & Dorr, Boston, Mass., on brief for William G. Rose and others, amici curiae.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

This is an appeal from a judgment declaring rights of former employees under a pension plan. In 1951 Textron, Inc., a Rhode Island corporation, established a non-contributory profit-sharing pension plan for its salaried employees and, upon the determination of its board of directors, for salaried employees of wholly owned subsidiaries. In 1955, it disposed of its last participating subsidiary. In 1957 a subsidiary, Amerotron Company, whose employees did not participate, was absorbed by Textron. Its plants and operations became known as Amerotron Division of Textron, and certain of its employees, having become employees of Textron, became members of the plan. In April 1963 Textron sold the assets pertaining to the Amerotron Division and the employees working there became employees of the purchaser. The defendants, trustees of the plan, notified these former employees what, in their view, was the effect upon their interests.

The plaintiffs are some 20 of the 382 former employees of the Amerotron Division. They brought the present proceedings assertedly as a class action on behalf of themselves and others seeking one or the other of two alternative constructions of the plan, both contrary to the one announced by the defendants. The district court adopted the second of plaintiffs' contentions and the defendants appeal.

In the district court the parties stipulated all of the facts, and, in addition, stipulated to this being a proper class suit and to the court's consequent jurisdiction. There being some question in our mind as to jurisdiction, we invited further briefs.¹

The basic dispute between the parties is whether plaintiffs' active interest in the plan terminated under Article VI, or under Article X. The plan, as will be developed later, contained broad powers of amendment. As of April 1963 Article VI, ¶ 6.01(a), provided in part, "The full amount of a Member's account shall become nonforfeitable upon termination of employment * * *." Paragraph 6.02 provided, "Any nonforfeitable interest in the fund shall be distributable only as provided in paragraph 6.04 * * *." Paragraph 6.04, quoted in part in the margin,² provided that the terminated employee's share in the fund should be ascertained forthwith and the amount so determined held as a fixed charge against the fund, to be paid upon the same terms and times (viz., total disability, death, or the attainment of age 65) as if the employee had continused his employment. In other words, the former employee's interest in the fund would no longer be increased as a result of employer contributions, nor would it grow, or shrink, as it had before, dependent upon the changing market value of the total assets.

If the former employee's interest fell under Article X it would not be in a fixed amount, but would be a percentage interest in a fund which would vary in size, depending upon the state of the market and the wisdom of the defendants' investment policies.³ In plaintiffs' view, which subsequent experience has borne out, this was a desirable difference.

The first question is that of the jurisdictional amount. The individual interest of many of the plaintiffs does not reach the sum of $10,000. Hence there is no jurisdiction through aggregation unless there is a joinder in interest that results in a "true" class suit. Snyder v. Harris, 1969, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319. Since plaintiffs, in one aspect, are seeking to establish a trust fund as distinguished from individual cash claims against the defendants, however, we are satisfied, subject to a reservation which we will come to shortly, that this is a proper class suit. See Berman v. Narragansett Racing Ass'n, Inc., 1 Cir., (7/31/69) 414 F.2d 311, and cases cited. The fact that the individual plaintiffs' beneficial interests may be of fixed proportion does not vary the fact that the existence of a single trust res is of common importance.

There is, however, a further requirement. In order to maintain a class suit plaintiffs must be truly representational.⁴ The reason for this has been well expressed in Carroll v. American Federation of Musicians, 2 Cir. 1967, 372 F.2d 155, at 162, vacated and remanded on other grounds, 391 U. S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460.

"In a true class action, all of the members of the class, including those absent, are bound by the judgment. See Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921); Dickinson v. Burnham, 197 F.2d 973 (2 Cir.), cert. denied 344 U.S. 875, 73 S.Ct. 169, 97 L. Ed. 678 (1952); Giordano v. Radio Corporation of America, 183 F.2d 558 (3 Cir. 1950). Therefore the interests of the affected persons must be carefully scrutinized to assure due process of law for the absent members. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). Since all members of the class are to be bound by the judgment, diverse and potentially conflicting interests within the class are incompatible with the maintenance of a true class action."

Unless the relief sought by the particular plaintiffs who bring the suit can be thought to be what would be desired by the other members of the class, it would be inequitable to recognize plaintiffs as representative, and a violation of due process to permit them to obtain a judgment binding absent plaintiffs. Hansberry v. Lee, 1940, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22; cf. Giordano v. Radio Corp. of America, 3 Cir. 1950, 183 F.2d 558.

In the case at bar, while the suing plaintiffs may have been of the opinion that wise management or other factors would cause the fund to grow, others could well have thought that a vested obligation in a fixed amount would be more desirable than to incur investment risks.⁵ Under such circumstances the court could not have found that plaintiffs were "typical" of the former Amerotron employees whom they purported to represent; they were typical of only one of two conflicting groups. Under the Rule, and as a matter of due process, plaintiffs could not represent both groups.

It may be asked whether under a liberal construction of the Rule,⁶ the court may describe a class that is limited to those who like the relief sought, after the others have had an opportunity to opt out.⁷ We do not reach this question or the possible question of due process that such a construction might produce. In the present case there is an easier answer. The defendant trustees are not simply stakeholders, but from the outset have themselves actively supported the position of this second group of former employees. Therefore, while it is not true that plaintiffs, as they would claim, represent all Amerotron employees, it is true that any whom they do not represent are represented by the defendants. Accordingly, we find the requirements of due process to be satisfied.

Turning to the merits, plaintiffs' claim that the discontinuance of membership in the plan of the Amerotron Division constituted a termination under Article X, supra, requires a determination that the Amerotron Division was itself an "Employer." This is directly contrary to the plan's definitional provision, Article I, ¶ 1.04(d).

"`Employer\' means the Company and any of the Subsidiary Companies referred to in

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