Research Corporation v. Asgrow Seed Company, 18333.
| Decision Date | 05 May 1970 |
| Docket Number | No. 18333.,18333. |
| Citation | 425 F.2d 1059 |
| Parties | RESEARCH CORPORATION, Plaintiff-Appellee, v. ASGROW SEED COMPANY, Asgrow Seed Company International, Asgrow Kilgore Company and United Hagie Hybrids, Inc., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Walther E. Wyss, Chicago, Ill., for appellants.
Clyde F. William, Robert L. Harmon, Chicago, Ill., for appellee.
Before SWYGERT, Chief Judge and KILEY and KERNER, Circuit Judges.
This is an appeal by defendants, Asgrow Seed Company, Asgrow Seed Company International, Asgrow Kilgore Company, and United Hagie Hybrids, Inc., from a consent judgment of patent validity and infringement rendered in favor of plaintiff, Research Corporation. Research has moved to dismiss the appeal on the ground that defendants, as members of a class under Fed.R.Civ.P. 23, have no right to appeal. After consideration of the record and the briefs of both parties, we dismiss the appeal.
The facts are not in dispute. In 1963 Research sued Pfister Association Growers, Inc. for infringement of U.S. Patent No. 2,753,663 which claims a method for producing hybrid seed corn. Subsequently, additional defendants were added and the complaint was amended to allege a violation of the antitrust laws. Trial was held on the infringement issue in 1966 and, after an impartial expert filed a report covering technical matters, the case was taken under advisement by the court in 1968.
Shortly thereafter, Research commenced the instant infringement action on the same patent, naming six companies as defendants and as representatives of a class consisting of all those who had allegedly infringed the patent. Under the local district court rule this case was assigned to the district judge who conducted the trial in the first infringement action. On December 30, 1968 the cases were consolidated and on February 19, 1969 Research filed an amended complaint which named several additional defendants and alleged both infringement and antitrust counts. The appellants, although members of the defendant class, were not among the named defendants.
In April 1969 the named defendants moved to dismiss the complaint on the ground that the case could not properly be maintained as a class action. The motion was denied by the court.1 On August 8, 1969 the members of the defendant class, including appellants, received notice of the class action in compliance with Fed.R.Civ.P. 23(c).
On September 6, 1969 Research mailed copies of a September 4 court order to members of defendant class announcing the agenda for a hearing on September 15, 1969 and scheduling another hearing for September 16 to discuss possible settlement terms. At no time did appellants ask for exclusion from the binding effect of a judgment against the class in the antitrust action or seek intervention as a party defendant.2 Subsequently, Research, the named defendants, and various class members negotiated, drafted and approved various settlement documents. Notice, in compliance with Fed.R.Civ.P. 23(e),3 was sent to all class members informing them of the proposed settlement. On January 22, 1970 a hearing was held at which time a consent judgment was entered. Over eighty class members filed consent forms and all of the named defendants executed the consent judgment order. Appellants raised no objection to the consent judgment and took no action until after the settlement negotiated by the parties had been approved by the district court. This is conceded by appellants whose answer to the motion to dismiss their appeal is substantially that it would have been futile to take such steps.
Judgments rendered in class actions conducted under Fed.R.Civ.P. 23(b) (1) and (b) (2) will bind non-party class members, Smith v. Alleghany Corp., 394 F.2d 381 (2d Cir.1968), including persons who have intervened or objected, Schwartzman v. Tenneco...
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Marcera v. Chinlund
...Research Corp. v. Pfister Associated Growers, Inc., 301 F.Supp. 497 (N.D.Ill.1969), Appeal dismissed sub nom. Research Corp. v. Asgrow Seed Co., 425 F.2d 1059 (7th Cir. 1970); Note, Defendant Class Actions, 91 Harv.L.Rev. 630, 633 (1978). In this case, however, there is an additional hurdle......
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Armstrong v. Board of School Directors of City of Milwaukee
...at 26. Furthermore, their right to appeal exists independent of any motion made in the district court. In Research Corp. v. Asgrow Seed Co., 425 F.2d 1059, 1060 (7th Cir. 1970), this court held that an unnamed class member who appears in response to a Rule 23(e) notice and objects to a sett......
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General Motors Corp. Engine Interchange Litigation, In re
...We consider the arguments in support of the second alternative first. It is argued that this court's decision in Research Corp. v. Asgrow Seed Co., 425 F.2d 1059 (7th Cir. 1970), compels this court to restrict the representative standing of the named plaintiffs who prosecute this appeal to ......
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Rebney v. Wells Fargo Bank
...to the settlement proceedings may appeal the entry of a final judgment after settlement approval"]; see also Research Corporation v. Asgrow Seed Company (1970) 425 F.2d 1059, 1060 [objector to class action settlement "has a right to appeal from an adverse final judgment"]; cf. Pettway v. Am......
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...class of retirees not bound by decision dismissing ERISA claims asserted by individual retiree), with Research Corp. v. Asgrow Seed Co., 425 F.2d 1059, 1060-61 (7th Cir. 1970) (nonparty defendant class members bound by settlement and entry of judgment after notice and opportunity to object)......
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Table of Cases
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An Intervention Requirement Provides Greater Benefit to the Corporation When Nonparty Shareholders Appeal Derivative Action Settlements: Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998).
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