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Before oral arguments on Tuesday, one might have thought Atlanta’s federal appeals court wasn’t very interested in a high-profile race discrimination suit against Southern Co. and three subsidiaries, including Georgia Power Co. The 11th U.S. Circuit Court of Appeals already had taken the rare step of denying requests by the NAACP Legal Defense and Education Fund and the U.S. Chamber of Commerce’s National Litigation Center to offer their views on the case in opposing friend-of-the-court briefs. But on Tuesday a three-judge panel subjected the case to a withering 85-minute examination, nearly three times the length of a typical oral argument. Lawyers for the plaintiffs and the Equal Employment Opportunity Commission, which was supporting the plaintiffs, bore the brunt of the panel’s scrutiny, as Judge Edward E. Carnes called one of the plaintiffs’ arguments “absurd.” At issue was a series of rulings against the plaintiffs — a proposed class of about 2,400 Southern Co. black employees — by Chief Judge Orinda D. Evans of the U.S. District Court in Atlanta. In October 2001, Evans refused to allow the case to become a class action. She concluded that statistics showing black employees had lower average salaries and fewer promotions than white employees — along with evidence about hangman’s nooses in Georgia Power offices and racial jokes, slurs and epithets — were “insufficient” to establish a hostile work environment common to all locations or a pattern and practice of discrimination throughout the companies. Then, in March 2003, Evans granted summary judgment to Southern Co. and the other defendants on the seven remaining individual claims. She said the evidence of the nooses didn’t prove that supervisors who tolerated them were racially biased or discriminated against black employees. And she rejected the plaintiffs’ statistical reports, calling them “analytically deficient” with no controls for employees’ education, experience or skills. The plaintiffs appealed the certification and summary judgment rulings, but the bulk of Tuesday’s argument went toward the certification issue. WEIGHING THE MERITS Representing the plaintiffs, Joshua F. Thorpe of Bondurant, Mixson & Elmore argued that Evans abused her discretion by weighing the merits of the evidence when deciding whether the plaintiffs met the requirements to establish a class action. Carnes and Judge R. Lanier Anderson III sounded skeptical. If judges were not allowed to weigh the merits of evidence at all, Anderson said, plaintiffs could merely make allegations and immediately be granted a class action. But Thorpe would not budge, repeatedly citing Kirkpatrick v. J.C. Bradford, 827 F.2d 718 (1987), in which the 11th Circuit reversed a judge’s denial of class certification because the judge made “an inappropriate inquiry into the merits of the plaintiffs’ claims.” Carnes imagined a judge being barred from weighing the merits of even the most outlandish claims. Then he declared Thorpe’s argument “absurd.” “You know we’re not going to accept that position,” he added. “The district court has to have some authority” to control what cases become class actions. The third member of the panel, Judge Stanley Marcus, suggested that it was “perfectly appropriate for a district court to examine evidence” when it relates to requirements that potential class members share common claims. Thorpe agreed, but argued that Evans went further than the 11th Circuit allowed in Kirkpatrick. Anderson and Carnes continued to pose tough questions for Thorpe. Anderson asked why a judge would have to certify a class action even if she knew the case would lose at the summary judgment phase. Thorpe said the judge did not have the authority to make summary judgment determinations of facts when considering class certification, so the case would have to be certified if it met the statutory requirements. “And who’s going to pay for that?” asked Carnes, who has complained in his writings about the cost of litigation. Thorpe responded that the class members would have to pay for the case’s cost. 85-MINUTE ARGUMENT The panel let Thorpe go after 36 minutes, about 25 minutes after he was supposed to have ended his opening presentation. Up next was Dori K. Bernstein of the EEOC, who was slated to speak for three minutes in favor of the plaintiffs. “It’s critically important the court recognize the strength of the evidence in this case,” Bernstein said. Questions about Evans’ authority and the judge’s assessment of statistics kept Bernstein at the podium for 19 minutes. So 55 minutes after the 30-minute argument began, Stephen W. Riddell of Troutman Sanders stepped up to argue on behalf of Southern Co. and the other defendants. The panel should affirm Evans’ decision, he argued, because the class case “was just too broad.” Riddell also pointed out specific problems in some of the individual cases, saying in one case that supervisors who allegedly discriminated against a black employee never knew the employee was black. The panel let Riddell speak for 28 minutes, interrupting him occasionally with questions. When Thorpe came back for rebuttal, Anderson held him to his originally planned two minutes. Courts typically grant outside parties’ requests to file amicus briefs; the U.S. Supreme Court last year accepted more than 100 briefs in its consideration of the Michigan affirmative action cases. But some judges have denied requests by parties when, as Judge Richard Posner of the 7th Circuit wrote in a 1997 decision, they consider amicus briefs merely a repeat of the arguments made by litigants. Ellen Dunham Bryant, a lawyer for the U.S. Chamber’s litigation center, said she was surprised that briefs by her group and the NAACP Legal Defense Fund were bounced in such a high-profile case. The NAACP legal fund supported the plaintiffs; the U.S. Chamber supported Southern Co. Groups such as the National Association for the Advancement of Colored People’s legal fund and the U.S. Chamber select their cases carefully, she said: “We don’t weigh in on everything.” The case is Cooper v. Southern Co., No. 03-12230.

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