46 F.

3d 1284
63 USLW 2409, 97 Ed. Law Rep. 661

In re ASBESTOS SCHOOL LITIGATION

PFIZER INC., Petitioner,
v.
The Honorable James T. GILES, Nominal Respondent
and
Barnwell School District No. 45; School District of
Lancaster; Manheim Township School District;
Lampeter-Strasburg School District; Board of Education of
the Memphis City Schools And A Conditionally Certified Class.
No. 94-1494.

United States Court of Appeals,

Third Circuit.
Argued Sept. 16, 1994.
Decided Dec. 28, 1994.

Charles R. Bruton (Argued), Richard W. Foltz, Jr., Maureen E. Lowry,

Pepper, Hamilton & Scheetz, Philadelphia, PA, for petitioner, Pfizer Inc.
Harvey S. Kronfeld, Harvey S. Kronfeld, P.C., Bala-Cynwyd, PA, David
Berger, Harold Berger, Thomas F. Hughes, Gerald E. Wallerstein, David
Berger, Attorneys at Law, Philadelphia, PA, for class-plaintiff.
Arnold Levin, Laurence S. Berman, Levin, Fishbein, Sedran & Berman,
Philadelphia, PA, for chair, plaintiffs' Trial and Liability Committee.
Arthur R. Miller (Argued), Cambridge, MA, of counsel for class-plaintiff.
Floyd Abrams (Argued), Allen S. Joslyn, Cahill Gordon & Reindel, New
York City, for respondent, W.R. Grace & Co.--Conn.
John H. Lewis, Jr., Joseph B.G. Fay, J. Gordon Cooney, Jr., Morgan,
Lewis & Bockius, Philadelphia, PA, for respondent, U.S. Gypsum Co.
George D. Webster, Webster, Chamberlain & Bean, Washington, DC, for

the American Soc. of Ass'n Executives.

Stephen J. Imbriglia, Hecker, Brown, Sherry & Johnson, Philadelphia,
PA, for respondent, U.S. Mineral Products Co.
Dennis B. Stephens, Schwabland and Ryan, P.C., Philadelphia, PA, for
respondent, Asbestospray, Inc.
Before: STAPLETON, ALITO, and LEWIS, Circuit Judges.
OPINION OF THE COURT
ALITO, Circuit Judge:

This is the latest appellate chapter in a lengthy nationwide class action in which
more than 30,000 school districts have sought relief from former manufacturers
of asbestos-containing building products ("ACBPs") for harm stemming from
the installation of ACBPs in their school buildings.1 The current proceeding
concerns a petition for a writ of mandamus filed by one of the defendants,
Pfizer Inc. In that petition, Pfizer seeks review of the district court's denial of its
motion for partial summary judgment on the plaintiffs' conspiracy and concert
of action claims. Pfizer argues that the denial of that motion has caused and is
continuing to cause irreparable harm to its First Amendment rights. Applying
the Supreme Court's decision in N.A.A.C.P. v. Claiborne Hardware Co., 458
U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), we hold that Pfizer cannot,
consistent with the First Amendment, be held liable on the plaintiffs'
conspiracy and concert of action claims and that the denial of Pfizer's partial
summary judgment motion was clearly in error. We further hold that the
issuance of a writ of mandamus is appropriate to prevent the harm to First
Amendment rights that would occur if review of the district court's decision had
to wait until a final judgment is entered in this protracted litigation.

I.
2

The initial complaints in this case were filed in early 1983, and Pfizer was
added as a defendant in January 1984. The plaintiff school districts alleged that
until the 1970s2 Pfizer and the other defendants had produced and sold ACBPs
without warnings even though they knew that the ACBPs would be used in
school buildings and that their presence there would be dangerous. Seeking
compensatory and punitive damages and injunctive relief, the plaintiffs asserted
claims based on negligence, strict liability, breach of implied warranties, and
intentional tort. Additionally, the plaintiffs alleged that the defendants had

acted pursuant to a "concert of action" and "civil conspiracy," and as a result,

the plaintiffs argued, each defendant was legally responsible for every other
defendant's conduct. See App. 264a-65a.
3

In January 1993, after extensive discovery, Pfizer moved for summary

judgment on the plaintiffs' civil conspiracy and concert of action claims. Pfizer
contended that the plaintiffs "ha[d] been unable to proffer any competent
evidence to support either a claim of conspiracy or concert of action against
Pfizer." Id. at 51a. Pfizer stated that the plaintiffs' proof against it consisted
entirely of the following: (1) that Pfizer had marketed an asbestos-containing
construction product, Kilnoise, from 1964 until 1972 and (2) that in 1984 Pfizer
had become associated with a trade organization called the Safe Buildings
Alliance ("SBA"). See id. at 53a-54a, 57a-58a. As we noted in In re School
Asbestos Litigation, 842 F.2d 671, 674-75 (3d. Cir.1988), the SBA has been
described by the defendants as "a lobbying and public education organization"
that has "represented its members' views before Congress, the EPA, state
legislatures and regulatory agencies" and "has also presented its views to the
general public through a self-initiated 'public education campaign.' " In support
of its summary judgment motion, Pfizer maintained:

4 fact that Pfizer began producing one asbestos-containing construction product in

The
1964 is not evidence of the existence of or any participation in a conspiracy or
concert of action. Moreover, Pfizer's joining the SBA twelve years after it ceased
production of Kilnoise ... and one year after this lawsuit was filed does not constitute
"evidence" of conspiratorial or concerted activity. Sharing and discussing
information which is a matter of public record and debate in a voluntary association
such as the SBA is neither a conspiracy nor a concert of action that was in any way
illegal.
5

App. 58a (emphasis in original).

In opposition to Pfizer's motion, the plaintiffs first intimated that their

conspiracy and concert of actions claims could survive summary judgment
because Pfizer, in marketing Kilnoise, had consciously chosen to follow the
same course of deceptive conduct as the other defendants. The plaintiffs wrote:

7
[P]fizer
marketed an asbestos-containing product for an eight-year period without
warnings though it had specific knowledge of its product's hazard. This conduct was
in keeping with the method of marketing asbestos products by its co-conspirators, as
Pfizer well knew, without any or adequate warnings.
8

Id. at 262a.

The plaintiffs then argued that their conspiracy and concert of action claims
could also survive summary judgment based on Pfizer's association with the
SBA. The plaintiffs maintained that Pfizer had been an "associate member of
the SBA." They stated that the SBA had been formed to coordinate the
defendants' "legal and communications positions," that the SBA "had
disseminated misleading information about the danger of asbestos in schools
directly to class members in this litigation," and that the SBA's activities had
been intended to limit its members' "liability for their prior sales ... by
discouraging school district class members from incurring more expensive
asbestos removal costs as opposed to possibly cheaper encapsulation methods,
and were also intended to cover up or continue the effects of their earlier
suppression of the hazards of their products." Id. at 262a-64a (emphasis in
original deleted). The plaintiffs argued that Pfizer, by associating with the SBA,
had joined an ongoing civil conspiracy or concert of action and had thus
become liable for all of the other defendants' prior tortious conduct. Id. at 264a65a.

10

The district court denied Pfizer's motion. The court did not adopt the argument
that Pfizer could be held to have entered into a conspiracy or concert of action
due to its conscious choice of a course of conduct that paralleled those of its codefendants. Rather, the court concluded that "there [was] evidence by which a
jury could reasonably find that Pfizer later joined an ongoing
conspiracy/concert of action by its involvement with, and financial support for
... [the SBA]." Dist.Ct.Op. at 1-2. The court noted (Dist.Ct.Op. at 2 & n. 1) that,
in an earlier ruling concerning the plaintiffs' request for an injunction, the court
had found that "Pfizer, Inc. ..., although it is not a member of the SBA, ha[d]
contributed insignificantly to the financing of the SBA." See In re Asbestos
School Litigation, 115 F.R.D. 22, 24 (E.D.Pa.1987), vacated on other grounds,
842 F.2d 671 (3d Cir.1988). However, the court concluded that these findings
were not binding at the summary judgment stage and that it should be left for
the jury to decide whether Pfizer had become a member of the SBA and
whether its contributions (which the plaintiffs allege amounted to at least
$50,000) were significant. The court also noted that "Pfizer's counsel [had]
admitted at oral argument that three or four of Pfizer's in-house attorneys [had]
attended SBA meetings when topics of interest to Pfizer were discussed."
Dist.Ct.Op. at 2. (footnote omitted).

11

Observing that Pfizer had maintained that the SBA's sole purpose was "to
disseminate to the public, government, and regulatory agencies its members'
views about the proper means for dealing with asbestos that was already in
place in buildings," the court stated that if this was indeed the SBA's sole
purpose, the "plaintiffs' conspiracy and concert of action claims against Pfizer

would fail for lack of causation" because the complaint did not allege that the
defendants had caused the plaintiffs damage "by misleading them about proper
techniques of asbestos removal or abatement." Id. at 3. The court continued:
12
However,
Plaintiffs have submitted evidence that the actions of SBA ... were also
aimed in part at convincing the public that SBA members had no prior knowledge of
the dangers of asbestos. Thus, SBA's actions could reasonably be interpreted by a
jury as contributing to an ongoing conspiracy to conceal the asbestos industry's
alleged knowledge of the dangers of asbestos.
13

Id. at 4.

14

Pfizer moved for reconsideration, arguing that the district court's decision
"penalize[d] Pfizer's exercise of its First Amendment rights to engage in free
speech and to associate with [the SBA]." App. 325a-26a. Citing N.A.A.C.P. v.
Claiborne Hardware Co., 458 U.S. at 918-20, 102 S.Ct. at 3428-29, Pfizer
added: "The United States Supreme Court has often cautioned that conspiracy
liability cannot be constitutionally imposed based upon mere association." App.
326a. The district court denied reconsideration, as well as Pfizer's request for
certification of an interlocutory appeal. Pfizer then filed the mandamus petition
that is now before us.

II.
15

The general standards for issuing a writ of mandamus have been restated many
times. As we wrote in a prior mandamus proceeding in this case:

16

The traditional use of mandamus has been "to confine an inferior court to a
lawful exercise of its prescribed jurisdiction or to compel it to exercise its
authority when it has a duty to do so." Roche v. Evaporated Milk Association,
319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). Even under that
formulation, however, "courts have not confined themselves to any narrow or
technical definition of the term 'jurisdiction.' " United States v. Santtini, 963
F.2d 585, 594 (3d Cir.1992). See Mallard v. United States District Court, 490
U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989).... Mandamus
may be especially appropriate to further supervisory and instructional goals,
and where issues are unsettled and important. See Sporck v. Peil, 759 F.2d 312,
315 (3d Cir.1985); United States v. Christian, 660 F.2d 892, 895-97 (3d
Cir.1981); Rapp v. Van Dusen, 350 F.2d 806, 810 (3d Cir.1965) (in banc).

17

In re School Asbestos Litigation, 977 F.2d 764, 773 (3d Cir.1992). See also,
e.g., Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir.1993);

United States v. Bertoli, 994 F.2d 1002, 1014-15 (3d Cir.1993); Haines v.
Liggett Group, Inc., 975 F.2d 81, 88-89 (3d Cir.1992); In re Pruitt, 910 F.2d
1160, 1167 (3d Cir.1990); United States v. Martinez-Zayas, 857 F.2d 122, 127
(3d Cir.1988).
18

Since mandamus is an "extraordinary" remedy, it must be invoked sparingly.

See In re School Asbestos Litig., 977 F.2d at 774. Excessive use would
undermine the important goal of avoiding piecemeal appellate review. Kerr v.
United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48
L.Ed.2d 725 (1976).3 In order to ensure that writs of mandamus are restricted to
extraordinary situations, the Supreme Court has set forth two conditions that
must be satisfied: first, the petitioner must show a "clear and indisputable" right
to the writ and, second, the petitioner must have "no other adequate means to
attain the relief ... desire[d]." Kerr, 426 U.S. at 403, 96 S.Ct. at 2124. "Once
these two prerequisites are met, the court's decision whether to issue the writ is
largely one of discretion." Haines, 975 F.2d at 89. See also Kerr, 426 U.S. at
403, 96 S.Ct. at 2124; Alexander, 10 F.3d at 163; In re School Asbestos
Litigation, 977 F.2d at 772.

III.
19

A. In considering Pfizer's petition, we turn first to the question whether Pfizer

has shown that it has a "clear and indisputable right" to the issuance of a writ.
Kerr, 426 U.S. at 403, 96 S.Ct. at 2124. We hold that Pfizer has made this
showing because the district court's decision lies far outside the bounds of
established First Amendment law.

20

As Pfizer contends, the district court's decision is squarely inconsistent with the
Supreme Court's decision in N.A.A.C.P. v. Claiborne Hardware Co., supra.
Claiborne Hardware resulted from events in Claiborne County, Mississippi,
from 1966 to 1972. African-American citizens of the county presented white
elected officials with a list of demands regarding racial equality and integration,
and when a satisfactory response was not received, several hundred persons
attending a meeting of the local branch of the N.A.A.C.P. voted to place a
boycott on white merchants in the area. The boycott was generally supported
by speeches and nonviolent picketing, but some threats and acts of violence did
occur. After several years, a group of white merchants brought suit in state
court and named as defendants the N.A.A.C.P., a local organization, and
numerous individuals. After a bench trial, most of the defendants were found to
be jointly and severally liable, based on three separate legal theories, for all of
the merchants' losses since the inception of the boycott. The Mississippi
Supreme Court reversed the lower court's holding of liability under two of the

three legal theories but sustained its holding with respect to most of the
remaining defendants under the third theory, which was based on civil
conspiracy and the common law tort of malicious interference with the
plaintiffs' businesses. 458 U.S. at 891 & n. 7, 894-95, 102 S.Ct. at 3414 & n. 7,
3415-16.
21

The United States Supreme Court unanimously reversed. The Court concluded
that the nonviolent elements of the boycott--giving speeches, banding together
for collective advocacy, nonviolent picketing, personal solicitation of
nonparticipants, and the use of a local black newspaper--were protected by the
First Amendment. 458 U.S at 907-15, 102 S.Ct. at 3422-27. While noting that
the First Amendment did not shield the acts of violence that had been
committed in connection with the boycott, the Court explained:

22 liability may not be imposed merely because an individual belonged to a

Civil
group, some members of which committed acts of violence. For liability to be
imposed by reason of association alone, it is necessary to establish that the group
itself possessed unlawful goals and that the individual held a specific intent to
further those illegal aims. "In this sensitive field, the State may not employ 'means
that broadly stifle fundamental personal liberties when the end can be more narrowly
achieved.' "
23

Id. at 920, 102 S.Ct. at 3429 (citations omitted) (emphasis added). Moreover,
the Court "emphasized that this intent must be judged 'according to the strictest
law.' " Id. at 919, 102 S.Ct. at 3429 (quoting Noto v. United States, 367 U.S.
290, 299-300, 81 S.Ct. 1517, 1521-22, 6 L.Ed.2d 836 (1961)). Applying this
standard, the court held that on the record before it "no judgment [could] be
sustained against most of the petitioners." 458 U.S. at 924, 102 S.Ct. at 3431.

24

In the present case, it is abundantly clear that the strict standard set out in
Claiborne Hardware cannot be met. For one thing, Pfizer's association with the
SBA, which was formed in 1984, cannot possibly show that Pfizer specifically
intended to further the other defendants' manufacture and distribution of
ACBPs, which ceased in the 1970s. Yet as the district court observed, all of the
harm for which the plaintiffs sought relief was caused by the manufacture and
distribution of ACBPs and not by any allegedly misleading statements that the
SBA subsequently made concerning ACBP removal.

25

In any event, even if the plaintiffs had sought to recover for harm caused after
the SBA's creation, and even if it is assumed for the sake of argument that the
record is sufficient to show that some of the SBA's activities were unlawful and
not entitled to First Amendment protection,4 the Claiborne Hardware standard

still could not be satisfied. There can be no doubt that at least some of the
SBA's activities were constitutionally protected. As we noted in an earlier
opinion, the SBA and its representatives provided testimony at congressional
hearings, sent informational packages to and met with members of Congress,
participated in EPA rulemaking, attended EPA meetings, submitted position
papers to and served on advisory committees appointed by the EPA, and
participated in legislative and regulatory proceedings in approximately 20
states. In re School Asbestos Litig., 842 F.2d at 674-75. Thus, Pfizer cannot be
held civilly liable for any wrongful conduct committed by the SBA or its
members in the years after the SBA's formation unless it can be shown that
Pfizer's actions taken in relation to the SBA were specifically intended to
further such wrongful conduct.
26

Here, there is simply no evidence that Pfizer had such an intent. The plaintiffs
rely on the fact that Pfizer made a contribution (allegedly amounting to at least
$50,000) to the SBA, but this fact is plainly insufficient. That donation could
have been specifically intended to further one or more of the SBA's many
constitutionally protected activities, or it could have been given for the general
purpose of helping the SBA. A rational jury could not find based on the record
before us that this donation was specifically intended to advance activities not
protected by the First Amendment.

27

Nor is it enough that Pfizer was allegedly an "associate member" of the SBA. A
member of a trade group or other similar organization does not necessarily
endorse everything done by that organization or its members.

28

Pfizer's only other conduct that is related to the SBA--the fact that three or four
of Pfizer's in-house attorneys attended some SBA meetings--is no more
probative. Attendance at a meeting of an organization does not necessarily
signify approval of any of that organization's activities. And, even if the
attendance at issue here could reasonably be interpreted as an expression of
general approval of the SBA's goals, it unquestionably could not rationally be
viewed as sufficient to show that Pfizer specifically intended to further any
allegedly tortious and constitutionally unprotected activities committed by the
SBA or its other members. See Claiborne Hardware, 458 U.S. at 924, 102 S.Ct.
at 3431-32 ("Regular attendance and participation at the [meetings] ... is an
insufficient predicate on which to impose liability [because the] ... findings do
not suggest that any illegal conduct was authorized, ratified, or even discussed
at any of the meetings."). Accordingly, the SBA-related evidence on which the
district court in this case relied does not come close to satisfying the strict
standard required by Claiborne Hardware.

29

B. Although Pfizer's brief relied heavily on Claiborne Hardware (see Pet.'s Br.
at 10, 18-21),5 the plaintiffs' brief made little effort to distinguish that case. The
entire discussion of Claiborne Hardware in that brief is as follows:

30
Pfizer
places great reliance on [Claiborne Hardware ] for the proposition that their
SBA activities are deserving of First Amendment protection. This argument simply
diverts attention from the simplicity of the issue at hand, i.e., whether sufficient
record evidence permitted the District Court to find that a jury could reasonably
infer that Pfizer took part in a conspiracy or concerted action on the record evidence
presented. Actions taken by Pfizer for which it may claim First Amendment or
Noerr- Pennington protection6 are not necessarily proper merely because they
inevitably included lobbying efforts. In any event, SBA's and Pfizer's self-interested
and misleading communications are not comparable to the kind of behavior which
Pfizer points to in Claiborne.
31

Resp. Class-Plaintiffs' Br. at 22-23.

32

Read generously, this passage may perhaps be interpreted to mean (a) that the
holding in Claiborne Hardware should be limited to the compelling factual
context in which that case arose and (b) that the decision of the district court,
even if it was wrong in relying on the SBA evidence, may nevertheless be
sustained on an alternative ground, i.e., that the non-SBA evidence in the
record was sufficient to preclude summary judgment for Pfizer on the
conspiracy and concerted action claims. Neither of these arguments is
persuasive.

33

As for the first, we readily agree that the factual background of Claiborne
Hardware was very different from this case and that the constitutionally
protected conduct in Claiborne Hardware was of much greater societal
importance. We see nothing in the Supreme Court's opinion, however, that
lends support to the suggestion that the standard it enunciated was not meant to
have general applicability. As a lower court, we do not feel free to give
Claiborne Hardware such a narrow interpretation; and in any event, for the
reasons explained in the Claiborne Hardware opinion, we would not do so even
if we could.

34

The second argument--that the district court's decision may be sustained based
on non-SBA-related evidence--is factually unsound. Attempting to persuade us
to accept this argument, plaintiffs' brief stated, without any citations to the
record, that "[t]he district court was aware of and considered a factual record
that included hundreds of documents ... showing meetings, conferences, letters

and tacit and direct agreements to conspire to conceal information or not to

warn among Pfizer and other defendants." Resp. Class-Plaintiffs' Br. at 24.
Prompted by this statement, we directed the plaintiffs to submit a letter-brief
listing and providing a citation for every action taken by Pfizer that the
plaintiffs wished us to consider in determining whether Pfizer could be held
liable for civil conspiracy. The letter-brief subsequently submitted by the
plaintiffs contended that a rational trier-of-fact could draw 11 relevant
inferences from the summary judgment record and that these inferences were
sufficient to defeat Pfizer's summary judgment motion. These inferences were:
1. Pfizer began to sell its Kilnoise ... in 1964, without warnings.
35
36Pfizer learned by at least 1965 that Dr. Irving Selikoff, one of the world's
2.
foremost asbestos researchers, had found a relationship between asbestos inhalation
and cancer.
3. Pfizer continued to sell its [Kilnoise] for seven more years without warnings.
37
38SBA members sold their [asbestos containing] products without warnings, some
4.
for as long as fifty years, despite knowledge of the dangers of asbestos and their
products.
39The SBA members and Pfizer were aware that each was selling its [asbestos5.
containing] products without warnings.6. SBA members had tacitly or overtly
agreed to continue to sell their [asbestos-containing products] without warnings, and
did so until government regulations were enacted requiring them to place warnings
on their [asbestos containing products].
.40There had been written agreements, meetings, and other communications among
asbestos defendants to conceal their knowledge of the dangers of asbestos from the
public.
. One purpose of the SBA was to continue the original concealment of its members.
41
.42Pfizer was in attendance at SBA meetings and provided substantial financial
support to the SBA.
.43The SBA materials were also intended to lower litigation costs for SBA members
and other defendants.
.44Pfizer removed [asbestos-containing materials] from its own facilities during the
SBA's dissemination of materials to the class advising the class not to abate
[asbestos-containing materials].

45

Having carefully reviewed the portions of the record that are said to support
these inferences, we are convinced that the record cannot sustain a claim
against Pfizer based on either a civil conspiracy or a concert of action.
Inferences eight through ten relate to the SBA and are thus covered by our
discussion above. Inferences six and seven would be highly significant if there
were any evidence that Pfizer had engaged in the activities in question, i.e., if
there were evidence that Pfizer had "tacitly or overtly agreed" with the other
defendants to continue selling its product without warnings or had been a party
to "written agreements, meetings, and other communications among asbestos
defendants to conceal their knowledge of the dangers of asbestos from the
public." However, our examination of the portions of the record cited by the
plaintiffs in support of these inferences revealed no such evidence. Inference
eleven--that Pfizer removed asbestos-containing materials from its own
facilities while the SBA was advising against such removal--has no bearing on
whether Pfizer engaged in a conspiracy or concerted action with the other
defendants.

46

The remaining inferences--numbers one through five--suggest that Pfizer and

the other defendants consciously engaged in parallel courses of conduct, but
under the law of Pennsylvania--the only jurisdiction whose law has been
briefed and therefore the only jurisdiction whose law we feel it appropriate to
consider7 --conscious parallelism is not sufficient to establish either a civil
conspiracy or concerted action.

47

In Burnside v. Abbot Lab., 351 Pa.Super. 264, 505 A.2d 973, 982 (1985), the
Pennsylvania Superior Court held that conscious parallelism is insufficient
under either of these theories. In that case, the plaintiffs contended, based on
conspiracy and concert of action theories, that all the pharmaceutical companies
that had manufactured diethylstilbestrol ("DES") should be jointly and
severally liable for injuries caused by the ingestion of DES. The court reviewed
the required elements of civil conspiracy and concerted action and explained
why the plaintiffs' allegations of conscious parallelism failed to satisfy these
requirements.

48

To prove civil conspiracy in Pennsylvania, the court stated, a plaintiff must

show "that two or more persons combine[d] or enter[ed] an agreement to
commit an unlawful act or to do an otherwise lawful act by unlawful means."
Id. at 980. The court noted that "[p]roof of malice is an essential part of a cause
of action for conspiracy," id. at 980 (citing Thompson Coal Co. v. Pike Coal
Co., 488 Pa. 198, 412 A.2d 466, 472 (1979)) and that the " 'mere fact that two
or more persons, each with the right to do a thing, happen to do that thing at the

same time is not by itself an actionable conspiracy.' " Id. 505 A.2d at 980-81
(quoting Fife v. Great Atlantic & Pacific Tea Co., 356 Pa. 265, 52 A.2d 24, 39
(1947), cert. denied, 332 U.S. 778, 68 S.Ct. 42, 92 L.Ed. 362 (1947)).
49

With this in mind, the court reviewed the plaintiffs' averments, which were as
follows:

50 1947 through 1941 [sic] each of the [d]efendants, individually and in concert
From
with each other, manufactured and marketed DES under various names but in an
identical, generic formula.... Although defendants knew or should have known of the
potential carcinogenic effects of DES, and its experimental status as a preventative
for miscarriage, [d]efendants manufactured and marketed it without testing for
teratogenic and carcinogenic effects; without warning for such potential effects, and
without notice of the Food and Drug Administration's approval for only
experimental use in prevention of miscarriage.
51

Burnside, 505 A.2d at 981-82. These allegations, the court held, were not
enough to prove a civil conspiracy. The court explained:

52 plaintiffs in the instant case have failed to allege the manner in which a
[T]he
conspiratorial scheme was devised and carried out. The complaint contains no
averments of meetings, conferences, telephone calls, joint filings, cooperation,
consolidation, or joint licensing. The plaintiffs have alleged no more than a
contemporaneous and negligent failure to act.
53

Id. at 982 (emphasis added).

54

Similarly, the court found that the plaintiffs' allegations failed to satisfy the
elements of a concerted action. The court explained that Pennsylvania appears
to follow Section 876 of the Restatement (Second) of Torts, which states:

55 harm resulting to a third person from the tortious conduct of another, one is
For
subject to liability if he
56

(a) does a tortious act in concert with the other or pursuant to a common design
with him, or

57

(b) knows that the other's conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct himself, or

58

(c) gives substantial assistance to the other in accomplishing a tortious result

and his own conduct, separately considered, constitutes a breach of duty to the
third person.
59

The court then concluded that subsection (a) requires proof of an explicit or
tacit agreement8 and that the plaintiffs' averments were insufficient to establish
such an agreement. The court likewise concluded that those averments were
insufficient to show the "substantial assistance" needed under subsections (b)
and (c). The court wrote:

60

The plaintiffs in this case ... rely upon averments that the defendant
manufacturers failed to test DES adequately and failed to give adequate warning
of the risks inherent in its use as a miscarriage deterrent. Plaintiffs have not
alleged either a tacit understanding or common design to market a defective
product or that appellees rendered substantial assistance in causing injury to the
plaintiffs. They have charged the defendants merely with "parallel and
imitative" conduct.... To sustain a cause of action for concerted tortious conduct
under these circumstances would be to expand the doctrine of Section 876 of
the Restatement beyond its intended scope....
Id. at 984.9

61

Since Burnside is a decision of a state intermediate appellate court, we are not

bound to follow it, but such decisions are "not to be disregarded by a federal
court unless it is convinced by other persuasive data that the highest court of
the state would decide otherwise." West v. American Telephone & Telegraph
Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940). See also Commissioner
v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967);
Northern Insurance Co. v. Aardvark Associates, Inc., 942 F.2d 189, 193 (3d
Cir.1991); Commercial Union Ins. Co. v. Bituminous Casualty Co., 851 F.2d
98, 100 (3d Cir.1988). Here, we have not been presented with (and have not
found) "other persuasive data that the [Supreme Court of Pennsylvania] would
decide otherwise." We therefore follow the Superior Court's decision in
Burnside; and applying the principles set forth in Burnside to the facts of this
case, we do not see how a rational jury could find the existence of a civil
conspiracy or concerted action based solely on the alleged fact that Pfizer and
the other defendants consciously engaged in parallel conduct.

62

C. In sum, then, the district court's decision was clearly wrong. Worse, it has
implications that broadly threaten First Amendment rights. The district court's
holding suggests that Pfizer--based solely on its limited and (as far as the record
reflects) innocent association with the SBA--could be held liable, as the

plaintiffs have urged, for all of the allegedly tortious acts committed by all of
the defendants, whether before or after the SBA was formed. The implications
of such a holding are far-reaching. Joining organizations that participate in
public debate, making contributions to them, and attending their meetings are
activities that enjoy substantial First Amendment protection. See, e.g., Citizens
Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S.
290, 294-96, 102 S.Ct. 434, 436-37, 70 L.Ed.2d 492 (1981); Buckley v. Valeo,
424 U.S. 1, 14-25, 96 S.Ct. 612, 632-38, 46 L.Ed.2d 659 (1976); N.A.A.C.P. v.
Alabama, 357 U.S. 449, 466, 78 S.Ct. 1163, 1173-74, 2 L.Ed.2d 1488 (1958).
But the district court's holding, if generally accepted, would make these
activities unjustifiably risky and would undoubtedly have an unwarranted
inhibiting effect upon them. For these reasons, we are convinced that Pfizer has
shown that its right to the issuance of the writ is "clear and indisputable."
IV.
63

We thus turn to the question whether Pfizer has any other adequate means to
obtain relief. We have held that it is appropriate to issue a writ of mandamus in
order to vacate an interlocutory order restraining constitutionally protected
expression during the pendency of a trial. Rodgers v. United States Steel Corp.,
536 F.2d 1001, 1006 (3d Cir.1976). Other courts of appeals have reached
similar results. See In re King World Productions, Inc., 898 F.2d 56, 59 (6th
Cir.1990); In re Perry, 859 F.2d 1043, 1046-47 (1st. Cir.1988); In re Halkin,
598 F.2d 176, 197-99 (D.C.Cir.1979); Chase v. Robson, 435 F.2d 1059, 1062
(7th Cir.1970). Mandamus has been found to be proper in these cases because
the duration of a trial is an "intolerably long" period during which to permit the
continuing impairment of First Amendment rights. In re Halkin, 598 F.2d at
199, (citing Bridges v. California, 314 U.S. 252, 268-69, 62 S.Ct. 190, 196-97,
86 L.Ed. 192 (1941)). Although a party might be able to obtain earlier review
by standing in contempt, courts of appeals have held that this is an inadequate
remedy because the threat of contempt "might well suffocate the 'breathing
space' necessary for the exercise of ... First Amendment rights." In re Halkin,
598 F.2d at 199; see also Chase, 435 F.2d at 1062. Thus, mandamus has been
recognized as a proper remedy in cases involving prior restraints.

64

The reasons that justify mandamus in prior restraint cases weigh in favor of its
use in the present case. Pfizer contends that, during the remainder of the district
court proceedings, it may wish to engage, by means of the SBA, in a "public
dialogue on the important issue of the safety of in-place asbestos-containing
building products,"10 and Pfizer would suffer irreparable harm if it were
deprived of the opportunity to engage in such constitutionally protected activity.
See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547

(1976) (plurality) ("The loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.") While the
district court's ruling did not directly prohibit Pfizer from associating with the
SBA during the remainder of the district court proceedings, there can be little
question that in reality the district court ruling will powerfully inhibit Pfizer
from doing so. Under the court's reasoning, any further participation by Pfizer
in SBA activities--any contributions, any attendance at meetings, etc.--would
appear to constitute evidence of Pfizer's participation in an ongoing conspiracy
or concert of action and thus be admissible at trial to prove such claims.
Therefore, if Pfizer exercised its First Amendment rights in relation to the SBA,
it would risk being held jointly and severally liable for all of the damages
awarded against its codefendants. In practical terms, the threat of such liability
might well have a more powerful impact on an entity like Pfizer than the threat
of civil contempt sanctions. Yet if Pfizer had been ordered, on pain of civil
contempt, to refrain from associating with the SBA during the pendency of the
trial, the propriety of mandamus relief under Rodgers v. United States Steel
Corp., supra, would be clear. See also United States v. Bertoli, 994 F.2d at
1015. In prior cases, we have taken "a flexible approach to the propriety of
reaching the merits of a non-final order on mandamus or prohibition in that the
mere possibility of other methods of review does not absolutely bar
consideration of the petition." Id. Here, the inhibiting effect of the district
court's decision seems to us to be sufficient to justify the use of mandamus.
65

Although we held in Communication Workers Of America, AFL-CIO v.

American Tel. & Tel. Co., 932 F.2d 199 (3d Cir.1991), that it is generally
inappropriate to use mandamus as a vehicle for reviewing the denial of
summary judgment, the present case is dramatically different. In
Communication Workers of America, we noted that by declining to issue a writ
mandating the entry of summary judgment we did no more than require the
petitioner to undergo a trial. Id. at 210. We believed that the expense of trial
was not alone so consequential as to justify issuance of a writ because appellate
review following final judgment was an adequate means to obtain relief. Id. As
we have explained, however, the harm in the present case goes well beyond the
mere expense and inconvenience of litigation. Failure to issue a writ in this case
would subject Pfizer to a continuing impairment of its First Amendment
freedoms. Accordingly, we hold that the two conditions that must be satisfied
before a writ of mandamus can issue--the petitioner's entitlement to relief must
be clear and indisputable and the petitioner must have no other adequate
remedy--are satisfied here.

V.
66

We recognize that even if a case satisfies these two conditions, the issuance of a

66

We recognize that even if a case satisfies these two conditions, the issuance of a
writ of mandamus is not always required. As the Supreme Court noted in Kerr,
426 U.S. at 403, 96 S.Ct. at 2124, "it is important to remember that issuance of
the writ is in large part a matter of discretion with the court to which the
petition is addressed." In this case, we think that the issuance of the writ is
appropriate, not only because Pfizer has satisfied the Kerr prerequisites, but
also because of the special nature of this case. The district court's ruling
unquestionably involves "important" issues, see In re School Asbestos Litig.,
977 F.2d at 773, and is squarely contrary to Supreme Court precedent.
Moreover, the extraordinary size and complexity of this class action--factors
that diminish the utility of appellate review following final judgment--must be
taken into account. See id. As we have observed, mandamus is a safety valve in
the final-judgment rule, and some flexibility is required in its application. Id. at
774. Furthermore, we have some concern that requiring Pfizer to stand trial for
civil conspiracy and concert of action predicated solely on its exercise of its
First Amendment freedoms could generally chill the exercise of the freedom of
association by those who wish to contribute to, attend the meetings of, and
otherwise associate with trade groups and other organizations that engage in
public advocacy and debate. An amicus (which represents executives who
manage thousands of business, professional, educational, technical, and trade
associations, professional societies and other nonprofit organizations) has
argued that the district court's decision may have such an effect. See Br. for
Amicus American Society of Association Executives at 1-2, 5. While we do not
want to overestimate the likely impact of a single, interlocutory district court
decision, we do not think that the amicus's concern is wholly unfounded.

67

In light of the circumstances that we have described, and because we find that
Pfizer has a clear and indisputable right to relief that cannot be effectively
vindicated by any other means, we hold that mandamus is a proper remedy in
this case.

VI.
68

For the reasons stated above, we grant Pfizer's petition for a writ of mandamus;
we vacate the district court's order denying Pfizer's motion for partial summary
judgment; and we remand the case for further proceedings consistent with this
opinion.
STAPLETON, Circuit Judge, dissenting:

69

I respectfully dissent.

70

It may well be that the district court's denial of Pfizer's motion for summary

70

It may well be that the district court's denial of Pfizer's motion for summary
judgment was in error. The issue before us, however, is whether Pfizer is
entitled to interlocutory appellate review of that denial. Nothing in the First
Amendment or Claiborne Hardware provides justification for our granting such
review. Moreover, I fear that the principle announced by the court today will be
impossible to cabin.

71

Joining together with others does not render legal conduct that would be illegal
if engaged in on one's own. Neither the First Amendment right of association
nor Claiborne Hardware provides otherwise. To the contrary, while Claiborne
Hardware holds that one cannot be held civilly liable solely for belonging to a
group some of whose members have committed acts of violence, it expressly
recognizes that one may be held liable if one supports a group that one knows
to have "illegal aims." 458 U.S. at 920, 102 S.Ct. at 3429. This is the legal
theory that the plaintiffs here press. It is also the legal theory pressed by all
others who bring conspiracy cases.

72

As the court points out, there appears to be no causal nexus between the
damages sought by plaintiffs and "any allegedly misleading statements that the
SBA subsequently made concerning ACBP removal." Op. at 1290. Moreover,
there appears to be precious little evidence in this record from which a trier of
fact could infer that Pfizer's participation in the SBA was for the purpose, in
whole or in part, of accomplishing an illegal objective that the SBA was
pursuing. For these reasons, if the record before us were a trial record and
Pfizer had suffered an adverse judgment I might well side with it. We have a
summary judgment record before us, however, and Pfizer has failed to convince
me that its position is in any way different from a defendant in any antitrust
conspiracy case, for example, that has lost a motion for summary judgment.

73

An individual's right to join any group of other individuals or firms is protected

by the First Amendment. So, too, is an individual's right to express himself or
herself through the activities of the group. This does not, however, mean that
one cannot be held liable for civil conspiracy based on the activities of the
group, including activities of a group involving representations and other
expressive communications to third parties. Indeed, members of trade
associations like SBA have repeatedly been held liable for anticompetitive
activities of their association where they were aware that the association had
undertaken such activities. See, e.g., Kline v. Coldwell, Banker & Co., 508
F.2d 226 (9th Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d
449 (1975); Phelps Dodge Refining Corp. v. FTC, 139 F.2d 393 (2d Cir.1943).

74

As I read the opinion of the court, the thing that singles Pfizer out from other

defendants in civil conspiracy cases and entitles it to immediate appellate

review is that its First Amendment rights will be chilled during the course of
this litigation if its innocence is not immediately established. Two sources of
such a chill are identified. The first is the fact that continued participation in the
SBA pendente lite may be admissible in evidence at trial in support of the
plaintiffs' conspiracy theory. The second is "the extraordinary size and
complexity of this class action" and the attendant litigation burden that denial
of immediate review will place on Pfizer. Neither factor, however, serves to
distinguish this case from most other conspiracy cases.
75

In any conspiracy case in which the alleged conspirators are still capable of
associating with one another, they face the prospect that continued association
pendente lite may be admissible in evidence at trial in support of the plaintiffs'
theory of recovery. Yet this has never been regarded as an intolerable burden on
the First Amendment rights of alleged co-conspirators. Contrary to the court's
suggestion, I see no similarity at all between the chill resulting from the
prospect of a contempt citation for violating a prior restraint and the chill
occasioned by a prospect that everyone contemplating a new social or business
association necessarily faces--i.e., the prospect that if a third party perceives the
new association as having an illegal aim, he or she may be sued and his or her
associational activities may be introduced in evidence in support of a claim that
he or she is liable for the activities of the association.

76

In each of the cases cited by the majority, a court, by threatening a contempt

citation, had directly targeted and threatened to punish activity that might
include expression protected by the First Amendment. The resulting chill has
long been held to be an intolerable burden on First Amendment interests. Pfizer
does not face contempt, however, and no court or other agent of the state has
targeted or threatened to punish the exercise of its First Amendment rights.
Pfizer faces only the possibility that evidence of any continuing participation in
the SBA may be admitted in evidence at trial. This is the incidental and
unavoidable consequence of the fact that Pennsylvania embraces the traditional
concepts of the law of civil conspiracy. For at least as long as prior restraints
have been condemned by the Supreme Court, the law of conspiracy and its
necessary effects have been found compatible with the First Amendment.1

77

If the burden of litigation can ever justify immediate appellate review where
none would otherwise exist, this is not a situation in which it does. While this
case has been going on for a long while, it is currently scheduled for trial in less
than a year. Moreover, immediate appellate review, whatever its outcome,
would not spare Pfizer the moderate litigation burden it faces. The plaintiffs
have other claims against Pfizer and it would be required to stay and defend to

judgment even if its position on the conspiracy claim were immediately

vindicated.2
78

I would deny the petition.

Different aspects of this case have been before our court on prior occasions. See
In re School Asbestos Litig., 977 F.2d 764 (3d Cir.1992); In re School Asbestos
Litig., 921 F.2d 1338 (3d Cir.1990), cert. denied sub nom., W.R. Grace & Co.
v. Barnwell School Dist. No. 45, 499 U.S. 976, 111 S.Ct. 1623, 113 L.Ed.2d
720 (1991); In re School Asbestos Litig., 921 F.2d 1330 (3d Cir.1990), cert.
denied sub nom., Kaiser Cement Corp. v. Lake Asbestos of Quebec, Ltd., 499
U.S. 976, 111 S.Ct. 1622, 113 L.Ed.2d 720 (1991); In re School Asbestos
Litig., 921 F.2d 1310 (3d Cir.1990), cert. denied sub nom., United States
Gypsum Co. v. Barnwell School Dist. No. 45, 499 U.S. 976, 111 S.Ct. 1623,
113 L.Ed.2d 720 (1991); In re School Asbestos Litig., 920 F.2d 219 (3d
Cir.1990); In re School Asbestos Litig., 842 F.2d 671 (3d Cir.1988); In re
School Asbestos Litig., 789 F.2d 996 (3d Cir.1986), cert. denied sub nom.,
Celotex Corp. v. School Dist. of Lancaster, 479 U.S. 852, 107 S.Ct. 182, 93
L.Ed.2d 117 (1986), and cert. denied sub nom., Nat'l Gypsum Co. v. School
Dist. of Lancaster, 479 U.S. 915, 107 S.Ct. 318, 93 L.Ed.2d 291 (1986)

The plaintiffs asserted that "[s]ubstantial amounts of asbestos ha[d] been used
in school buildings, beginning as early as 1900 and particularly during the
period 1946 through 1972." App. 28a. "The application of friable asbestoscontaining material," the plaintiffs' complaint noted, "was banned by the
United States Environmental Protection Agency by December 31, 1978." Id

It has also been noted that mandamus now has the unfortunate consequence of
making the district court judge a litigant. Kerr, 426 U.S. at 402, 96 S.Ct. at
2123-24; Fed.R.App.P. 21. Under a preliminary draft of a proposed amendment
to Fed.R.App.P. 21, however, the trial judge would no longer be treated as a
respondent. See Committee on Rules of Practice and Procedure of the Judicial
Conference of the United States, Request for Comment on Preliminary Draft of
Proposed Amendments to the Federal Rules of Appellate Procedure, etc., 156
F.R.D. 340, 350 (Sept. 1, 1994)

For example, the plaintiffs, apparently referring to the booklet at issue in In re

School Asbestos Litigation, 842 F.2d 671 (3d Cir.1988), contend that "[t]he
SBA disseminated misleading information about the danger of asbestos in
schools directly to class members in this litigation, designed to reduce or limit
Pfizer's and the other defendants' liability exposure in these cases by

encouraging class members either not to abate or to use cheaper abatement

methods...." Resp. Class-Plaintiffs' Br. at 13-14. If true, these allegations might
satisfy the elements of fraudulent misrepresentation. See Restatement (Second)
of Torts Sec. 525; Borelli v. Barthel, 205 Pa.Super. 442, 211 A.2d 11, 12-13
(1965)
5

See also Br. for Resp. W.R. Grace & Co. at 12-13; Br. for for Amicus
American Society of Association Executives at 9-10

See United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14
L.Ed.2d 626 (1965); Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961)

The plaintiffs' brief argued that the evidence in the record is sufficient to
establish a civil conspiracy or concerted action under Pennsylvania law, but
they stated in a footnote that they did not agree that Pennsylvania law was
controlling. Resp. Class-Plaintiffs' Br. at 26 n. 9. Rather, they suggested that
the law of all of the jurisdictions in which members of the plaintiff class are
located should be applied. Id. They did not, however, brief the law of any other
jurisdiction, and indeed, they did not provide a citation for even one nonPennsylvania case. Under these circumstances, we deem the plaintiffs to have
forfeited the right to rely on the law of any other jurisdictions for purposes of
the mandamus proceeding

See also Restatement (Second) of Torts Sec. 876, comment a, clause (a)

See also, e.g., Ryan v. Eli Lilly & Co., 514 F.Supp. 1004, 1012-16
(D.S.C.1981) (applying South Carolina law); Zafft v. Eli Lilly & Co., 676
S.W.2d 241, 244-45 (Mo.1984); Sindell v. Abbott Laboratories, 26 Cal.3d 588,
163 Cal.Rptr. 132, 139-41, 607 P.2d 924, 931-33 (1980), cert. denied, 449 U.S.
912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980)

10

See Pet.'s Br. at 25. At oral argument, Pfizer stated that it feared that any
further contributions to or association with the SBA might be admissible at
trial, under the district court's ruling, as evidence of conspiracy or concerted
action. Pfizer also feared that its continued membership in various non-asbestos
trade associations could render it potentially liable for anything these groups
said or did

It is well established doctrinally that direct "gag order" type restrictions-restrictions which target the protected activity directly--receive heightened First
Amendment scrutiny, while restrictions which only have an incidental,
unintended, effect on the protected activity rarely raise First Amendment
concerns. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172,

92 L.Ed.2d 568 (1986) (closing a book store because of prostitution on the

premises was constitutionally permitted despite the incidental effect on a First
Amendment-protected activity)
2

The majority also asserts that "requiring Pfizer to stand trial for civil conspiracy
and concert of action predicated solely on its exercise of its First Amendment
freedoms could generally chill the exercise of freedom of association" of others.
Op. at 1295-96 (emphasis added). The Supreme Court has consistently rejected
these "general" chill arguments. See University of Pennsylvania v. E.E.O.C.,
493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (rejecting the University
of Pennsylvania's claim that a general chilling effect warranted a First
Amendment privilege for peer review materials); Branzburg v. Hayes, 408 U.S.
665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (rejecting reporters' claims to a
privilege against revealing the identities of their confidential sources because
the claimed chilling effect on speech was incidental and speculative)