Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 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. 101-102.

(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.

619 F.2d 459, affirmed. POWELL, J., delivered the opinion for a unanimous Court.