Gulf Oil Company v. Bernard, No. 80-441

CourtUnited States Supreme Court
Writing for the CourtPOWELL
Citation68 L.Ed.2d 693,452 U.S. 89,101 S.Ct. 2193
Docket NumberNo. 80-441
Decision Date01 June 1981
PartiesGULF OIL COMPANY et al., Petitioners, v. Wesley P. BERNARD et al

452 U.S. 89
101 S.Ct. 2193
68 L.Ed.2d 693
GULF OIL COMPANY et al., Petitioners,

v.

Wesley P. BERNARD et al.

No. 80-441.
Argued March 30, 1981.
Decided June 1, 1981.
Syllabus

Petitioner Gulf Oil Co. and the Equal Employment Opportunity Commission entered into a conciliation agreement involving alleged discrimination against black and female employees at one of Gulf's refineries. Under this agreement, Gulf undertook to offer backpay to alleged victims of discrimination and began to send notices to employees eligible for backpay, stating the amount available in return for execution of a full release of all discrimination claims. Respondents then filed a class action in Federal District Court against Gulf and petitioner labor union, on behalf of all black present and former employees and rejected applicants for employment, alleging racial discrimination in employment and seeking injunctive, declaratory, and monetary relief. Gulf then filed a motion seeking an order limiting communications from the named plaintiffs (respondents) and their counsel to class members. Ultimately, over respondents' objections, the District Court issued an order, based on the form of order in the Manual for Complex Litigation, imposing a complete ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the court's prior approval. The order stated that if any party or counsel asserted a constitutional right to communicate without prior restraint and did so communicate, he must file a copy of the communication with the court. The court made no findings of fact and did not write an explanatory opinion. The Court of Appeals reversed, holding that the order limiting communications was an unconstitutional prior restraint on expression accorded First Amendment protection.

Held : The District Court in imposing the order in question abused its discretion under the Federal Rules of Civil Procedure. Pp. 99-104.

(a) The order is inconsistent with the general policies embodied in Federal Rule of Civil Procedure 23, which governs class actions in federal district courts. It interfered with respondents' efforts to inform potential class members of the existence of the lawsuit, and may have been particularly injurious not only to respondents but to the class as a whole—because employees at that time were being pressed to decide whether to accept Gulf's backpay offers. In addition, the order made

Page 90

it more difficult for respondents to obtain information about the merits of the case from the persons they sought to represent. Pp. 99-101.

(b) Because of these potential problems, such an order should be based on a clear record and specific findings reflecting a weighing of the need for a limitation and the potential interference with the parties' rights. Only such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules, especially Rule 23. Moreover, such a weighing should result in a carefully drawn order that limits speech as little as possible, consistent with the parties' rights. Pp. 101-103.

(c) Here, there is no indication of a careful weighing of competing factors, and the record discloses no grounds on which the District Court could have determined that it was necessary or appropriate to impose the order. The fact that the order involved serious restraints on expression, at a minimum, counsels caution on the District Court's part in drafting the order and attention to whether the restraint was justified by a likelihood of serious abuses. Pp. 102-104.

(d) The mere possibility of abuses in class-action litigation does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Federal Rules. And certainly there was no justification for adopting the form of order recommended by the Manual for Complex Litigation, in the absence of a clear record and specific findings of need. P. 104.

5 Cir., 619 F.2d 459, affirmed.

William G. Duck, Houston, Tex., for petitioners.

Jack Greenberg, New York City, for respondents.

Lawrence G. Wallace, Washington, D. C., for the U. S. et al., as amici curiae, by special leave of Court.

Page 91

Justice POWELL delivered the opinion of the Court.

This is a class action involving allegations of racial discrimination in employment on the part of petitioners, the Gulf Oil Co. (Gulf) and one of the unions at its Port Arthur, Tex., refinery. We granted a writ of certiorari to determine the scope of a district court's authority to limit communications from named plaintiffs and their counsel to prospective class members, during the pendency of a class action. We hold that in the circumstances of this case the District Court exceeded its authority under the Federal Rules of Civil Procedure.

I

In April 1976, Gulf and the Equal Employment Opportunity Commission (EEOC) entered into a conciliation agreement involving alleged discrimination against black and female employees at the Port Arthur refinery. Gulf agreed to cease various allegedly discriminatory practices, to undertake an affirmative action program covering hiring and promotion, and to offer backpay to alleged victims of discrimination based on a set formula. Gulf began to send notices to the 643 employees eligible for backpay, stating the exact amount available to each person in return for execution within 30 days of a full release of all discrimination claims dating from the relevant time period.1

Approximately one month after the signing of the conciliation

Page 92

agreement, on May 18, 1976, respondents filed this class action in the United States District Court for the Eastern District of Texas, on behalf of all black present and former employees, and rejected applicants for employment, at the refinery.2 They alleged racial discrimination in employment and sought injunctive, declaratory, and monetary relief, based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. The defendants named were Gulf and Local 4-23 of the Oil, Chemical, and Atomic Workers International Union. Plaintiffs' counsel included three lawyers from the NAACP Legal Defense and Education Fund.3 Through this lawsuit, the named plaintiffs sought to vindicate the alleged rights of many of the employees who were receiving settlement offers from Gulf under the conciliation agreement.

On May 27, Gulf filed a motion in the District Court seeking an order limiting communications by parties and their counsel with class members. An accompanying brief described the EEOC conciliation agreement, asserting that 452 of the 643 employees entitled to backpay under that agreement had signed releases and been paid by the time the class action was filed. Gulf stated that after it was served in the case, it ceased sending backpay offers and release forms to class members. It then asserted that a lawyer for respond ents,

Page 93

Ulysses Gene Thibodeaux, had attended a meeting of 75 class members on May 22, where he had discussed the case and recommended that the employees not sign the releases sent under the conciliation agreement. Gulf added that Thibodeaux reportedly had advised employees to return checks they already had received, since they could receive at least double the amounts involved through the class action.

The court entered a temporary order prohibiting all communications concerning the case from parties or their counsel to potential or actual class members. The order listed several examples of communications that were covered, but stated that it was not limited to these examples. It was not based on any findings of fact.

On June 8, Gulf moved for a modification of the order that would allow it to continue mailings to class members, soliciting releases in exchange for the backpay amounts established under the conciliation agreement. Respondents filed a brief in opposition, arguing that the ban on their communications with class members violated the First Amendment. On June 11, the court heard oral argument, but took no evidence. Gulf then filed a supplemental memorandum proposing that the court adopt the language of "Sample Pretrial Order No. 15" in the Manual for Complex Litigation App. § 1.41.4 Respondents replied with another memorandum, accompanied by sworn affidavits of three lawyers. In these affidavits counsel stated that communications with class members

Page 94

were important in order to obtain needed information about the case and to inform the class members of their rights. Two affidavits stated that lawyers had attended the May 22 meeting with employees and discussed the issues in the case but neither advised against accepting the Gulf offer nor represented that the suit would produce twice the amount of backpay available through the conciliation agreement.

On June 22, another District Judge issued a modified order adopting Gulf's proposal.5 This order imposed a complete

Page 95

ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the prior approval of the court. It gave examples of forbidden communications, including any solicitation of legal representation of potential or actual class members, and any statements "which may tend to misrepresent the status, purposes and effects of the class action" or "create impressions tending without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice." The order exempted attorney-client communications initiated by the client, and communications in the regular course of business. It further stated that if any party or counsel "assert[ed] a constitutional right to communicate . . . without prior...

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1031 practice notes
  • Goonewardena v. New York, No. 05 Civ. 8554 PKC FM.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 14, 2007
    ...to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision." Gulf Oil Co. v. Bernard, 452 U.S. 89, 99, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). If there is no violation of Title II, then the Georgia analysis ends and the claim is dismissed on......
  • Barriga v. 99 Cents Only Stores LLC., E069288
    • United States
    • California Court of Appeals
    • June 26, 2020
    ...class certification motion. Plaintiff appeals those orders.Adopting the standards articulated in Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 ( Gulf Oil ), California courts have recognized the trial court has both the duty and the authority to exercise control......
  • Sony Music Entm't v. Cox Commc'ns, Inc., Case No. 1:18-cv-950-LO-JFA
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • June 2, 2020
    ...v. Wold Engineering, P.C. , 467 U. S. 138, 157-158, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) ); see also Gulf Oil Co. v. Bernard , 452 U.S. 89, 99, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981) ("[P]rior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds f......
  • Ting v. At & T, No. C 01-02969 BZ.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • January 15, 2002
    ...action treatment ... is the opportunity to save the enormous transaction costs of piecemeal litigation ...."); Gulf Oil Co. v. Bernard, 452 U.S. 89, 99, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981) ("Class actions serve an important function in our system of civil Page 931 The California Supreme C......
  • Request a trial to view additional results
1036 cases
  • Barriga v. 99 Cents Only Stores LLC., E069288
    • United States
    • California Court of Appeals
    • June 26, 2020
    ...class certification motion. Plaintiff appeals those orders.Adopting the standards articulated in Gulf Oil Co. v. Bernard (1981) 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 ( Gulf Oil ), California courts have recognized the trial court has both the duty and the authority to exercise control......
  • Sony Music Entm't v. Cox Commc'ns, Inc., Case No. 1:18-cv-950-LO-JFA
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • June 2, 2020
    ...v. Wold Engineering, P.C. , 467 U. S. 138, 157-158, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) ); see also Gulf Oil Co. v. Bernard , 452 U.S. 89, 99, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981) ("[P]rior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds f......
  • Ting v. At & T, No. C 01-02969 BZ.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • January 15, 2002
    ...action treatment ... is the opportunity to save the enormous transaction costs of piecemeal litigation ...."); Gulf Oil Co. v. Bernard, 452 U.S. 89, 99, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981) ("Class actions serve an important function in our system of civil Page 931 The California Supreme C......
  • Snyder Communications v. Magana, No. 13-02-076-CV.
    • United States
    • Court of Appeals of Texas
    • November 27, 2002
    ...but rather that the trial court must exercise its discretion within the framework of the rule. FED.R.CIV.P. 23; Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). We do not read Bernal's use of the term "rigorous analysis" any Further, while acknowledging the ......
  • Request a trial to view additional results

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