Seitz, Aldisert and Adams, Circuit Judges. Adams, Circuit Judge, dissenting.
Interpace Corporation (Interpace) seeks a writ of mandamus to compel the district court to vacate its order permitting nine anti-trust actions pending against Interpace to be maintained as class actions. The real respondents here are the plaintiffs in such civil actions and they have moved that we dismiss Interpace's petition on the ground that the order of the district court is not reviewable by mandamus.
Interpace is the successor by merger to Lock Joint Pipe Co., which pleaded nolo contendere in 1966 to an indictment charging that it conspired with other concrete pipe manufacturers to violate the antitrust laws. A treble damage action was instituted against it and some other manufacturers in the Southern District of New York by the City of New York as a class representative of all governmental bodies in the United States. Many, but not all, of the respondents in the class actions below intervened as plaintiffs in the New York action.
Thereafter an action containing allegations of antitrust violations somewhat similar to the New York action was filed in the United States District Court for the Eastern District of Pennsylvania by the City of Philadelphia et al., on behalf of all governmental bodies in the Commonwealth of Pennsylvania. However, the parties and the alleged classes were not identical with those in the New York action. By July 1969, five additional class actions had been filed in the Eastern District of Pennsylvania on behalf of governmental bodies in other states as well as some private parties. Still later, three additional actions were brought there. Meanwhile, the district court in New York ordered that the action pending there should not proceed as a class action. The United States Court of Appeals for the Second Circuit decided that the order was not appealable until final judgment. City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295 (1969). Thereafter, respondents moved that the actions below proceed as class actions. The district court, over objection, granted the motion. After an unsuccessful effort to seek to have the district court certify its determination to this court, Interpace filed the present petition.
We commence our analysis by assuming, as has Interpace, that the challenged class action order was not appealable as of right before final judgment in the absence of appropriate judicial approval. We know, of course, that not every order which is not immediately appealable may be reviewed by mandamus, even though an abuse of discretion is charged. Without laboring the point, we merely note that a Court of Appeals may not undertake a de novo evaluation of the record and itself exercise a discretionary function which is committed to the trial court. See Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 11 L. Ed. 2d 674, 84 S. Ct. 769 (1964).
Against this background we consider Interpace's asserted grievances. It first asserts that since the relevant considerations were similar, the Pennsylvania court erred in refusing to consider itself bound by the decision of the New York court and holding that the cases before it could be maintained as class actions. We shall assume, without deciding, that such a contention may under some circumstances justify the use of the writ of mandamus. However, Federal Rule 23(c)(1) itself provides that the ruling on the propriety of a class action may be amended by the court before a final decision on the merits. Since the New York judge could have taken cognizance of a changed factual circumstance, a district court judge hearing another, albeit similar, class action would have at least that same right, indeed the same obligation. Here, not only do the proposed classes in the two actions differ but the Pennsylvania court had more discovery material before it. Interpace contends that such differences were not of sufficient substance to justify a different result in the Pennsylvania action. But we think the resolution of such an argument would be singularly inappropriate in deciding whether a writ of mandamus should issue.
Interpace next asserts that the district court should not have permitted the actions to proceed as class actions because of the conflicts of interest of the purported class representatives with the class members. This matter was reviewed by the district court. Without rehashing the facts, we are satisfied that the issues do not rise to a stature that requires the invocation of the extraordinary writ which is sought.
Interpace also argues at length that respondents failed to establish the prerequisites to maintaining a class action. We think this type of argument is not a proper matter for consideration by way of mandamus.
Finally, Interpace contends that the district court was required to make findings to support its ruling on respondents' motion under Rule 23. Assuming without deciding that a breach of such a duty would be cognizable by mandamus, the short answer is that Rule 52(a) specifically provides that " . . . Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion. . ." We cannot read Rule 23(b)(3) as impliedly creating a specific exception to the clear language of Rule 52(a). The casual use of the word "finds" in Rule 23(b)(3) is not significant, since the same terminology is employed in a motion context in several other Rules, including Rules 32(a)(3), 37(a)(4) & (c), and 39(a). The language in question refers merely to the preliminary determinations the court must make before deciding the class action issue and does not require an express, objective articulation of those determinations.
We feel compelled to add the following observation. Although the district court is not required to make findings in deciding a motion of the type here involved, we do think that where, as here, the district court is presented with conflicting positions of substance as to how it should exercise its discretion in determining whether to permit a class action, it is a salutary practice to give the litigants, either orally or in writing, at least a minimum articulation of the reasons for its decision. This is particularly true because of the practical importance of such a determination and the limited possibility of obtaining a seasonable review of the determination.
In summary, Interpace asks us to reverse, by way of mandamus, the order of the district court. Under the circumstances of this case such action would constitute an unwarranted exercise by this court of the ...