concurring.
I agree that the writ of mandamus should be denied in this case for the procedural reasons stated by Judge Gibson. In my opinion, however, the substantive questions of the form of notice which was approved by the district court on May 21, 1980, and the failure to give any prior notice in granting the dismissal of outside directors, have not been answered by our opinion and may be raised in any post trial appeal on the merits.
I particularly believe that a serious mistake has been made by the trial court as to each of these questions and therefore point out that this court has reserved the right to examine these issues in a subsequent appeal on the merits. As Judge Gibson points out on page 1150: “The issue [we decide] is not whether the District Court correctly determined the issue of law concerning the proper application of Rule 23(e).”
There can be little question that one or both sides of this litigation have engaged in a classic case of “judge shopping.” In my opinion, when this became fairly obvious, Judge Lord should have recused himself.1
. It is particularly bothersome that Judge Lord approved nunc pro tunc the June 28, 1979 dismissal of the four defendants on February 12, 1980, after the four defendants had retained the services of the law firm in which Judge Lord’s son-in-law is a partner.