IN RE: Asbestos School Litigation

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

12-28-1994

IN RE: Asbestos School Litigation
Precedential or Non-Precedential:

Docket 94-1494

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 94-1494
____________

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

____________________

PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Related to D. C. Civil No. 83-00268)
____________________

Argued: September 16, 1994
Before: STAPLETON, ALITO, and LEWIS, Circuit Judges

(Opinion Filed: December 28, l994 )

____________________

CHARLES R. BRUTON (Argued)
RICHARD W. FOLTZ, JR.
MAUREEN E. LOWRY
PEPPER, HAMILTON & SCHEETZ
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103-2799

Attorneys for Petitioner, Pfizer Inc.
 HARVEY S. KRONFELD
HARVEY S. KRONFELD, P.C.
21 Bala Avenue
Bala-Cynwyd, PA 19004

DAVID BERGER
HAROLD BERGER
THOMAS F. HUGHES
GERALD E. WALLERSTEIN
DAVID BERGER ATTORNEYS AT LAW
1622 Locust Street
Philadelphia, PA 19103

Co-Lead Counsel for Class-Plaintiff

ARNOLD LEVIN
LAURENCE S. BERMAN
LEVIN, FISHBEIN, SEDRAN & BERMAN
320 Walnut Street, 6th Floor
Philadelphia, PA 19106

Chair, Plaintiffs' Trial and Liability Committee

ARTHUR R. MILLER (Argued)
1545 Massachusetts Avenue
Cambridge, MA 02138

Of Counsel for Class-Plaintiff

FLOYD ABRAMS (Argued)
ALLEN S. JOSLYN
CAHILL GORDON & REINDEL
80 Pine Street
New York, New York 10005

Attorneys for Respondent, W.R. Grace & Co. - Conn.

JOHN H. LEWIS, JR.
JOSEPH B. G. FAY
J. GORDON COONEY, JR.
MORGAN, LEWIS & BOCKIUS
2000 One Logan Square
Philadelphia, PA 19103-6993

Attorneys for Respondent, United States Gypsum Company

GEORGE D. WEBSTER
WEBSTER, CHAMBERLAIN & BEAN
 1747 Pennsylvania Avenue N.W.
Washington, D.C. 20006

Attorneys for the American Society of Association Executives
 STEPHEN J. IMBRIGLIA
HECKER, BROWN, SHERRY & JOHNSON
18TH AND Arch Streets
1700 Two Logan Square
Philadelphia, PA 19103

Attorneys for Respondent, U.S. Mineral Products Company

DENNIS B. STEPEHENS
SCHWABLAND AND RYAN, P.C.
1260 One Penn Center
1617 John F. Kennedy Blvd.
Philadelphia, PA 19103

Attorneys for Respondent, Asbestospray, Inc.
____________________

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
1
. 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 (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 (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 (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 (1986),
and cert. denied sub nom., Nat'l Gypsum Co. v. School Dist. of
Lancaster, 479 U.S. 915 (1986).
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

(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.

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

2
. 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 asbestos-containing
material," the plaintiffs' complaint noted, "was banned by the
United States Environmental Protection Agency by December 31,
1978." Id.
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.

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." App. 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:
The fact that Pfizer began producing one
asbestos-containing construction product in
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.

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:
[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.

App. 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 264a-65a.

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 parallelled those of

its co-defendants. 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).

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:
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.

Id. at 4.
 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, Pfizer added: "The United

States Supreme Court has often cautioned that conspiracy

liability cannot be constitutionally imposed based upon mere

association." Id. at 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.

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:
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).

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).

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 (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. "Once these two

prerequisites are met, the court's decision whether to issue the
3
. 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; 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).
writ is largely one of discretion." Haines, 975 F.2d at 89. See

also Kerr, 426 U.S. at 403; Alexander, 10 F.3d at 163; In re

School Asbestos Litigation, 977 F.2d at 772.

III.

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. We hold that Pfizer has made this showing because the

district court's decision lies far outside the bounds of

established First Amendment law.

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.

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. 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:
Civil liability may not be imposed merely
because an individual belonged to a 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.'"

Id. at 920 (citations omitted) (emphasis added). Moreover, the

Court "emphasized that this intent must be judged `according to

the strictest law.'" Id. at 919, (quoting Noto v. United States,

367 U.S. 290, 299-300 (1961)). Applying this standard, the court
held that on the record before it "no judgment [could] be

sustained against most of the petitioners." Id. at 924.

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.

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

4
. 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 § 525; Borelli v. Barthel, 211 A.2d 11, 12-13
(Pa.Super. 1965).
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.

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.

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.
 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 ("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.

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:
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

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.
 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.

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

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.

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

6
. See United Mine Workers v. Pennington, 381 U.S. 657 (1965);
Eastern Railroad Presidents Conference v. Noerr Motor Freight,
Inc., 365 U.S. 127 (1961);
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.

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.

2. Pfizer learned by at least 1965 that Dr.
Irving Selikoff, one of the world's 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.

4. SBA members sold their [asbestos
containing] products without warnings, some
for as long as fifty years, despite knowledge
of the dangers of asbestos and their
products.

5. The SBA members and Pfizer were aware that
each was selling its [asbestos 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].

[7]. There had been written agreements,
meetings, and other communications among
asbestos defendants to conceal their
knowledge of the dangers of asbestos from the
public.

[8]. One purpose of the SBA was to continue
the original concealment of its members.

[9]. Pfizer was in attendance at SBA
meetings and provided substantial financial
support to the SBA.

[10]. The SBA materials were also intended
to lower litigation costs for SBA members and
other defendants.

[11]. Pfizer 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].

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.

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.

7
. The plantiffs' 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
 In Burnside v. Abbot Lab., 505 A.2d 973, 982 (Pa.Super.

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.

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., 412 A.2d 466, 472 (Pa. 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. at 980-81 (quoting Fife v. Great

(..continued)
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 non-Pennsylvania 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.
Atlantic & Pacific Tea Co., 52 A.2d 24, 39 (Pa. 1947), cert.

denied, 332 U.S. 821 (1947)).

With this in mind, the court reviewed the plaintiffs'

averments, which were as follows:
From 1947 through 1941 [sic] each of the
[d]efendants, individually and in concert
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.

Burnside, 505 A.2d at 981-82. These allegations, the court held,

were not enough to prove a civil conspiracy. The court

explained:
[T]he plaintiffs in the instant case have
failed to allege the manner in which a
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.

Id. at 982 (emphasis added).

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:
For harm resulting to a third person from the tortious
conduct of another, one is subject to liability if he
 (a) does a tortious act in concert with
the other or pursuant to a common design with
him, or

(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

(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.

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:
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. . . .

8
. See also Restatement (Second) of Torts § 876, comment a,
clause (a).
505 A.2d at 984.9

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 (1940). See also Commissioner v.

Estate of Bosch, 387 U.S. 456 (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.

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

9
. 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, 607 P.2d 924, 931-33 (Cal. 1980), cert. denied, 449
U.S. 912 (1980).
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 (1981); Buckley v. Valeo, 424 U.S. 1, 14-25 (1976);

N.A.A.C.P. v. Alabama, 357 U.S. 449, 466 (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.

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 (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.

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 contaminating 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 (1976) (plurality) ("The loss of First

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.
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.

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.

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,
"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.

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.

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.
___________________________

Please see the Dissent, filed by Judge Walter K. Stapleton,Jr.

this date, which will be listed and printed in separate form.