# Cassidy v. Horan

> Court of Appeals for the Second Circuit · December 30, 1968 · 405 F.2d 230

URL: https://www.frixlaw.com/law-library/cases/8879918

## Case

- **Full name:** Fred CASSIDY v. Richard HORAN, James Richard, Betty Ponticello, Larry Storey, Joseph Vaccaro, David Conner, Ray Jund, Alex Riola, Miriam Wells and Charles Bence, Sr.
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** December 30, 1968
- **Citations:** 405 F.2d 230
- **Precedential status:** Published
- **Opinion:** Concurring in part by Lumbard
- **Judges:** Anderson, Lumbard, Smith
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8879918

## Opinion text

LUMBARD, Chief Judge
(concurring and dissenting):
While I concur in the result because I find no merit to the suit for the reason Judge Smith sets forth in his footnote, I must register a dissent to so much of his opinion as holds that the plaintiff is out of court for failure to comply with the procedural requirements of Section 501 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 501 .
In my opinion, Cassidy has sufficiently complied with the procedural requirements of Section 501(b). In an obvious attempt to comply with the requirements of this Section, Cassidy sent letters to the entire slate of officers prior to instituting this suit. In these letters he stated that on behalf of the union members “and pursuant to the authority vested in me * * * by the Labor-Management Reporting and Disclosure Act of 1959, I hereby demand that you reimburse the Union the sums of money * * * which you have spent against the interest of the Union.” The letters went on to say that money was spent in violation of the officers’ fiduciary obligation, and listed expenditures totaling $7,890. They concluded: “You are advised that unless these sums of money are reimbursed to the Union on or before August 1, 1964, the further steps which the Act permits will be taken.”
It is clear from the language of Section 501(b) that the necessary request can be made either to the union, its governing board, or its officers. The only question, therefore, is whether plaintiff’s demand was the kind of request required by Section 501(b). The majority holds that “a demand for a sum of money is not sufficient.” It follows that plaintiff’s action is to be abated because he has not in so many words “requested suit.” However, to request that the officers bring suit against themselves to recover money wrongfully spent would seem absurd to the ordinary individual—elemental logic would dictate that the officers simply be asked to repay the money. Under these circumstances, it seems to me unduly technical to hold that plaintiff’s request was insufficient.
It is true that this court held in Coleman v. Brotherhood of Railway and Steamship Clerks, 340 F.2d 206, 208 (2 Cir. 1965) that an allegation of the futility of a request would not satisfy the statute. But there was no request whatsoever in the Coleman case and thus the question of the form and wording of the request required by the statute was not decided.
Here the officers were advised in writing of the demand, it was stated in detail and in dollars and cents and it was perfectly obvious that upon refusal the plaintiff would proceed by suit as he did. The intermediate step of requesting the officers to bring suit against themselves, or one or more of them if need be, was implicit. It serves no purpose whatever to require that such a notice be given again and that the obvious be emphasized by a few additional unnecessary words.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8879918. Public record. Not legal advice.