School Asbestos Litigation, In re
| Decision Date | 17 March 1988 |
| Docket Number | No. 87-1123,No. 87-1081,Nos. 87-1081,87-1123,87-1081,s. 87-1081 |
| Citation | 842 F.2d 671 |
| Parties | , 10 Fed.R.Serv.3d 655, 45 Ed. Law Rep. 557 In re SCHOOL ASBESTOS LITIGATION. SCHOOL DISTRICT OF LANCASTER MANHEIM TOWNSHIP SCHOOL DISTRICT, Lampeter-Strasburg School District and Northeastern School District v. LAKE ASBESTOS OF QUEBEC, LTD., the Celotex Corporation, Raymark Industries, Inc., Union Carbide Corp., Asbestospray Corp., Sprayo-Flake Company, National Gypsum Co., Sprayed Insulation Inc., Asbestos Fibres Inc., Dana Corp., U.S. Gypsum, U.S. Mineral Products Co., Sprayon Insulation & Acoustics, Inc., Sprayon Research Corp., Keene Corp., Worben Co., Inc., Wilkin Insulation Co., W.R. Grace & Co., Owens-Corning Fiberglas Corporation, Standard Insulations, Inc., North American Asbestos Corp., Cassiar Resources, Ltd., Bell Asbestos Mines, Ltd., Asbestos Corporation Limited, Southern Textile Corp., Owens-Illinois, Inc., Turner & Newall Limited, the Flintkote Co., Fibreboard Corporation, Gaf Corp., Uniroyal, Inc., Cape Asbestos, Pfizer, Inc., Kaiser Cement Corporation, Bes-Tex, Inc., Georgia-Pacific Corp. Appeal of NATIONAL GYPSUM COMPANY, United States Gypsum Company, W.R. Grace & Co., The Celotex Corporation and Owens-Corning Fiberglas Corporation, Appellants inAppeal of The SAFE BUILDINGS ALLIANCE, a corporation organized pursuant to the District of Columbia Nonprofit Corporation Act, Appellant in |
| Court | U.S. Court of Appeals — Third Circuit |
Richard P. Brown, Jr., Frank L. Corrado, Jr., Morgan Lewis & Bockius, Philadelphia, Pa., for United States Gypsum Co., appellant in No. 87-1081.
Lawrence T. Hoyle, Jr., Arlene Fickler, David E. Landau, Hoyle, Morris & Kerr, Philadelphia, Pa., for Nat. Gypsum Co., appellant in No. 87-1081.
Shepard M. Remis, Kenneth A. Cohen (argued), Goodwin, Procter & Hoar, Boston, Mass., Lowell A. Reed, Jr., Rawle & Henderson, Philadelphia, Pa., for W.R. Grace & Co., appellant in No. 87-1081.
Ralph W. Brenner, Stephen A. Madva, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for The Celotex Corp., appellant in No. 87-1081.
John Patrick Kelley, Catherine N. Jasons, Krusen Evans & Byrne, Philadelphia, Pa., for Owens-Corning Fiberglas Corp., appellant in No. 87-1081.
Tom P. Monteverde, Monteverde, Hemphill, Maschmeyer & Obert, Philadelphia, Pa., L. Mark Wine (argued), Timothy S. Hardy, Stuart A.C. Drake, James T. O'Neill, Kirkland & Ellis, Washington, D.C., for The Safe Bldgs. Alliance, appellant in No. 87-1123.
Herbert B. Newberg (argued), Harvey S. Kronfeld, Gerald A. Wallerstein, Martin J. D'Urso, Herbert B. Newberg, P.C., Philadelphia, Pa., Edward J. Westbrook, Blatt & Fales, Charleston, S.C., Frank J. Daily, Quarles & Brady, Milwaukee, Wis., for class plaintiffs and Barnwell School Dist. No. 45, appellees in Nos. 87-1081 and 87-1123.
Arnold Levin, Levin & Fishbein, Philadelphia, Pa., for class plaintiffs, appellees in Nos. 87-1081 and 87-1123.
Daniel A. Speights, Daniel A. Speights Law Office, Hampton, S.C., for Barnwell County School Dist. No. 45, appellee in Nos. 87-1081 and 87-1123.
David Berger (argued), Daniel Berger, Sheldon V. Toubman, David Berger Attorneys at Law, Philadelphia, Pa., for School Dist. of Lancaster, Manheim Tp. School Dist., Lampeter-Strasburg School Dist., Bd. of Educ. of the Memphis City Schools and Napa Valley Unified School Dist., appellees in Nos. 87-1081 and 87-1123.
R. Michael Carr, LaBrum & Doak, Philadelphia, Pa., for Keene Corp., appellee in Nos. 87-1081 and 87-1123.
Robert M. Frankhouser, Jr., Hartman, Underhill & Brubaker, Lancaster, Pa., for School Dist. of Lancaster, Manheim Tp. School Dist. & Lampeter-Strasburg School Dist., appellees in Nos. 87-1081 and 87-1123.
Before HIGGINBOTHAM and BECKER, Circuit Judges, and BARRY, District Judge *.
These consolidated appeals arise out of class action litigation that is currently pending in the United States District Court for the Eastern District of Pennsylvania. In that suit, public and private elementary and secondary schools nationwide have sued former manufacturers and suppliers of asbestos-containing materials. The plaintiff schools seek to recover the costs of removing, repairing, containing and maintaining asbestos-containing materials in school buildings.
Relying on its authority under Fed.R.Civ.P. 23(d) to control communications between class action litigants, the district court entered the order challenged in these appeals. The order requires appellant corporations and their organization, the Safe Buildings Alliance ("SBA"), "prominently [to] display" a prescribed notice concerning the litigation whenever they communicate "in any manner" with members of the plaintiff class or with any group reasonably believed to include a class member or representative of a class member. In re Asbestos School Litig., 115 F.R.D. 22, 26 (E.D.Pa.1987). Appellants challenge the order on two grounds. They claim that the order exceeds the district court's authority under Rule 23(d), and that the order imposes an unconstitutional restraint on their free speech rights under the first amendment. Because we find that the district court's order was not proper under Rule 23(d), we will vacate it and remand this matter for proceedings consistent with this opinion.
Appellants National Gypsum Company, United States Gypsum Company, W.R. Grace & Co., The Celotex Corporation and Owens-Corning Fiberglas Corporation ("the corporate-defendant-appellants" or "the SBA members") are manufacturers of building products. These companies formerly produced and supplied asbestos-containing materials for use in buildings, and they are among the approximately fifty defendant companies in the underlying litigation, which was commenced in 1984. 1 SBA, though not a party to the litigation, is an association whose membership consists entirely of the corporate-defendant-appellant. 2 Joint Appendix ("Jt.App.") at 240, 384. SBA readily admits that it is funded almost exclusively by the corporate-defendant-appellants, and that its executive committee and board of directors are composed entirely of representatives of those companies.
SBA was formed in April 1984, in part to assist its members in organizing to participate in a United States Environmental Protection Agency ("EPA") proceeding concerning asbestos in buildings. The formation of SBA also coincided with the initiation of this litigation.
By 1984, the asbestos-in-buildings issue had been a focus of public attention and debate for several years. Asbestos in schools has been a particular focus of public concern since the early 1980s, and litigation constitutes only one forum in which this debate has taken place. At the time the SBA was formed, numerous state legislatures and regulatory agencies were investigating the issue, and some state asbestos-related laws had been enacted. The United States Congress was actively considering the problems posed by the presence of asbestos in buildings, and had passed two statutes that concerned asbestos in schools. 3 Several federal regulatory agencies, including the EPA, 4 had also turned their attention to the asbestos-in-buildings issue.
According to the corporate-defendant-appellants, they formed the SBA to communicate their point of view more effectively to government officials and the general public. They describe the SBA as "a lobbying and public education organization with four goals: (1) development of practical alternatives to dangerous, indiscriminate asbestos removal; (2) adoption of objective standards of asbestos abatement; (3) development of a responsible building inspection process; and (4) establishment of training and certification programs for removal contractors." Brief of Appellants National Gypsum Co., United States Gypsum Co., W.R. Grace & Co., The Celotex Corp., and Owens-Corning Fiberglas Corp. ("Brief of Appellant Corporations") at 6. SBA, responding to what it describes as a "public misperception ... about the hazards of asbestos in buildings," id. at 7, has since its formation represented its members' views before Congress, 5 the EPA, 6 state legislatures and regulatory agencies. 7 SBA has also presented its views to the general public through a self-initiated "public education campaign."
The corporate-defendant-appellants stress that the SBA is not Brief of Appellants Corporations at 9. They note that the SBA has never been involved in any product liability litigation. The SBA members acknowledge, however, that Id. at 10 n. 7. In addition, SBA itself notes that concerns regarding member companies' potential liability in this and other products liability litigation has been central to its lobbying efforts and public education campaign.
The costs and risks of asbestos control fall in the first instance on the building owner. But the suppliers' risk of liability to building owners in lawsuits like the School Asbestos Litigation also puts them in a position of possible responsibility for the owners' response costs. Building owners and former suppliers thus share a similar interest in addressing potential asbestos risks promptly and efficiently, in order to minimize the costs of the control strategy without compromising safety.
Brief of Appellant Safe Buildings Alliance ("SBA Brief") at 10. One of the main goals of the SBA's "public education campaign" has been to disseminate information concerning what the SBA members describe as ...
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