Opposition — Rondeau v. Mosinee Paper Corp.

No. 74-415 |] swiz asm

In the

Supreme Cowt of the United States

Ocroper Term, 1974

FRANCIS A. RONDEAU,

Petitioner,

vs.

MOSINEE PAPER CORPORATION,

Respondent.

On Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF OF RESPONDENT

JAMES A. URDAN

LAURENCE C. HAMMOND, JR.

W. STUART PARSONS

DARRYL BELL

780 North Water Street

Milwaukee, Wisconsin 53202

414/273-3700

Attorneys for Respondent

ie

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX

PAGE

I Ie i 1

I scciirsstinennnnncermnctinidaiiniiiiiiiiganimmeneenees A)

I. There Is No Split Of Authority Between Cir-

cuits On The Question Whether ‘*‘ Deliberate,

Covert And Conspiratorial Conduct’’ ls Requi-

site To Injunctive Relief For Violation Of The

Federal Securities Laws .................:.scc-sseseceeseess A)

A. The Per Curiam Order of the Eighth Cir-

cuit Which Petitioners Cite as Creating a

Conflict Between Circuits Has No Prece-

Batis “VD sctitcinttiiheinieeinninnin 5)

B. The Seventh Cireuit’s Decision Is Con-

sistent With the Relevant and Considered

Decisions of Other Courts of Appeal ........ 6

Il. Irreparable Injury To The Private Party Seek-

ing Injunctive Relief Is Not Essential Where

That Party Is Acting To Vindicate The Public

Interest In Enforcement Of A Federal Regula-

tory Scheme _ .............-..----c-cssscscececscsesseessensssssesensnsers 10

Cam onecevccecoccnsecapessocssesveconsesnscesooassosoonecenecesssessenesatsesonaes 13

Appendix—

Tri-State Motor Transit Co. v. National City

Lines, No. 73-867 (8th Cir.) Per Curiam Order

filed April 4, 1974 .............--.---c-ccscsssesseseseeseseseseee A. 1

ii

AUTHORITIES CITED

Cases

PAGE

Bath Industries v. Blot, 427 F.2d 97, 102 (7th Cir.1970) 2

Beacon Theaters v. Westover, 359 U.S. 500 (1959) ..... 12

Cameron v. Johnson, 390 U.S. 611 (1968) .0000 0. 12

Chris-Craft Industries, Inc. v. Bangor Punta Corp.,

480 F.2d 341 (2d Cir.), cert. den. 414 U.S. 979 (1973) 10

Chris-Craft Industries, Inc. v. Piper Aircraft Corp.,

480 F.2d 341 (2d Cir.), cert. den. 414 U.S. 910

STUER sseiieiniaieldsiaedhiniahienidespeletesiitipansetiiiambieinigiiaiaitiataainihiatlaaeaeiti 12

City National Bank v. Vanderboom, 422 F.2d 221 (8th

Cir.), cert. den. 399 U.S. 905 (1970) wwe. 8

Electronic Specialty Co. v. International Controls

Corp., 409 F.2d 937 (2d Cir. 1969) 2. ecto 9

Ellis v. Carter, 291 F.2d 270 (9th Cir. 1961) 000000... 8

GAF Corp. v. Milstein, 453 F.2d 709, 717 (2d Cir.),

cert. den. 406 U.S. 910 (1972) ..................-.0..0c.-ceeceeeee 2, 6,8

Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281 (2d

CR FD senrenteterntncecenttantntititeatinnss<caneer isasemgiaaninniticsli 7

Gulf & Western Industries, Inc. v. Great A. & P. Tea

Co., Inc., 476 F.2d 687 (2d Cir. 1973) 202... 11, 12

Hecht Co. v. Bowles, 321 U.S. 321 (1944) 00000. 9

J. I. Case Co. v. Borak, 377 U.S. 426 (1964) 000. 9

Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973) ... 8

Locomotive Engineers v. M.-K.-T. R. Co., 363 U.S.

SP IT: Acntsdictncniedenvinsennndatalistintnenseeninnntuciansibeinninmmnaiits 12

iii

PAGE

Minnesota Mining and Mfg. Co. v. Meter, 385 F.2d 265

IEE Reese ec eee eR ee ON 12

Myzel v. Fields, 386 F.2d 718 (8th Cir. 1967), cert.

UE, SD Gis Te GI icticcecsiccencesevsccnneennictassninsean 8

Pa. v. Wheeling & Belmont Bridge Co., 54 U.S. (13

Ic na bscveuinansrniciinae 12

Ronson Corp. v. Liquifin Aktiengesellschaft, 483 F.2d

I I 11

Royal Air Properties, Inc. v. Smith, 312 F.2d 210 (9th

Se AUIUIIEE ” -sisatibconcssietcamesniiniiliaapeitandeindelaaataaehteibaabaeats cata heal 8

SEC v. Culpepper, 270 F.2d 241 (2d Cir. 1959) .......... 9

SEC v. Great American Industries, Inc., 407 F.2d 453,

(2d Cir.), cert. den. 395 U.S. 920 (1969) 0. 7,9

SEC v. Universal Service Association, 106 F.2d 232

Suen GUL, EINE”. asnnspsineaiorlsiitieRianecestbuecshehibensidinesseiieiedenminias 9

SEC v. Van Horn, 371 F.2d 181 (7th Cir. 1966) _.......... g

Stevens v. Vowell, 343 F.2d 374 (10th Cir. 1965) ... 8

Tri-State Motor Transit Co. v. National City Lines,

No. 73-867 (8th Cir. April 4, 1974) 20. 5-6

United States v. First National City Bank, 379 U.S.

Se GD cesiretineinnnniin 10-11, 11-12

U. S. v. Griesa, 481 F.2d 276 (2d Cir. 1973) 2.0020 .. 11

U. S. v. W. T. Grant Co., 345 U.S. 629 (1935) _........ 9

Virginian D. Co. v. Federation, 300 U.S. 515 (1937) ... 11

iv

Statutes and Rules

PAGE

Securities Exchange Act of 1934:

we Oe Be ee | ene 8

we oe 2

ie ee EE Ae TIL, dectssecnivestsbiesiionnteecceansectsaatiniociaees 7

SEC Rules:

SEC Rule 10b-5, 17 C.F.R. § 240.10b-5 22... 8

SEC Rule 13a-11, 17 C.F.R. § 240.13(a) 11-0000... 7

SEC Rule 14a-9(a), 17 C.F.R. § 240.14a-9(a) ...... 7,9

SEC Rule 15d-11, 17 C.F.R. § 240.15(d)-11 —.......... 7

Miscellaneous:

Rule 14 of the Court of Appeals for the Eighth

PUTIIIES secricietesiiccalinessieshceveiibndbieniinaiienstibasiinataieseianidanaieiisasial 5)

In the

Supreme Cowt of the United States

Ocrosper Term, 1974

No. 74-415

FRANCIS A. RONDEAU,

Petitioner,

vs.

MOSINEE PAPER CORPORATION,

Respondent.

On Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Cireuit

BRIEF OF RESPONDENT

STATEMENT OF THE CASE*

This case arose under certain amendments to the Securi-

ties Exchange Act of 1934 (‘‘the Act’’), known as the Wil-

* Only matters which respondent considers were inadequately or

misleadingly treated in petitioners’ statement of the case (Petition

at 8-9) are presented in this statement.

2

liams Act (Act of July 29, 1968, Pub. L. No. 90-439, 82

Stat. 456, codified [in relevant part] at 15 U.S.C.

§$78m(d)).

Section 13(d) of the Williams Act, 15 U.S.C. $78m(d)

was created ‘‘. . . to close a gap in the disclosure

requirements of existing securities laws by requiring

full disclosure by persons or groups who ‘purchase by

direct acquisition or by tender offers * * * substantial

blocks of the securities of publicly held companies.’ ’’

Bath Industries, Inc. v. Blot, 427 F.2d 97, 102 (7th Cir.

1970). Specifically, ‘‘the purpose of section 13(d) is to

require disclosure of information by persons who have

acquired a substantial interest, or increased their interest

in the equity securities of a company by a substantial

amount, within a relatively short period of time.’’ S.Rep.

No. 550 at 7; H.R.Rep. No. 1711 at 8, U.S. Code Cong. &

Admin. News p. 2818. ‘‘Otherwise, investors cannot as-

sess the potential for changes in corporate control and

adequately evaluate the company’s worth.’’ GAF Corp. v.

Milstein, 453 F.2d 709, 717 (2nd Cir.), cert. den., 406 U.S.

910 (1972). See generally Comment Section 13(d) and

Disclosure of Corporate Equity Ownership, 119 U.Pa.L.

Rev. 853 (1971).

Under section 13(d), a person acquiring beneficial own-

ership of more than 5% of the shares of an issuer must

within ten days file with the SEC and mail to the issuer a

Schedule 13D containing detailed information as to his

identity, the identities of his associates in the acquisition,

their backgrounds, holdings, financing and purposes in

acquiring the stock.

Petitioner Francis A. Rondeau, described by his attor-

neys in the district court as a ‘‘successful and knowledge-

3

able businessman,’’* made his first purchase of respon-

dent Mosinee Paper Corporation’s common stock (500

shares) on April 5, 1971. By May 17, 1971** he had ac-

quired 40,309 shares, some in his own name, some in the

names of corporations and other entities controlled by him.

That number of shares constituted more than 5% of Mosi-

nee’s common stock outstanding. Ten days later, on May

27, Rondeau was required by law to file with the Securities

and Exchange Commission and mail to Mosinee the

Schedule 13D. But he did not. Instead, for a period of 112

days, from May 27 to August 4, 1971, Rondeau, six corpo-

rations and the partnership which he controlled bought

16,384 more shares of Mosinee stock at relatively low

prices from investors who might well have refused to sell

the stock or demarded a higher price had they known of

Rondeau’s purpose to obtain or consider obtaining effec-

tive control of Mosinee (a purpose disclosed when he fi-

nally filed on August 25, 1971).

Mosinee commenced action in the district court on Sep-

tember 2, 1971, seeking (among other things) damages and

permanent injunctive relief. There was fairly extensive

* Brief in Support of Defendants’ Motion for Summary Judgment,

Appeal Doc. No. 15, p. 4.

** Petitioners misleadingly state that “[o]n July 9, 1971 respon-

dent’s stock register indicated that petitioner controlled more than

5% of its issued and outstanding stock.” (Petition at 8). That is

true. But the statute is not triggered by what happens on the “stock

register”—it is triggered by an acquisition of more than 5%. That

concededly happened on May 17, 1971.

4

discovery. On December 24, 1971, the defendants filed a

motion for summary judgment, which Mosinee opposed.

On February 13, 1973, Judge Doyle entered his Opinion

and Order for entry of summary judgment in defendants’

favor. P.A. 15. The Court of Appeals disagreed, holding

that Rondeau’s failure to file created precisely the kind of

situation the Williams Act was designed to preclude:

‘*By failing to timely file, Rondeau effectively failed

to disclose to investors and management the cir-

cumstances surrounding his potential to effect the

control of Mosinee Paper while at the same time he

continued to parchase securities in a market that had

not been adequately apprised of such potential. Under

the circumstances, Rondeau’s failure to timely file

was more than a mere technical violation of the Wil-

liams Act.’’ P. A. 31.

Petitioners contend: (1) that granting relief against a

section 13(d) violation when no ‘‘deliberate, covert and

conspiratorial conduct’’ has been shown placed the Sev-

enth Cireuit Court of Appeals in conflict with the Eighth;

(2) that the Seventh Cireuit’s holding that Mosinee’s

being ‘‘irreparablv injured’’ was not a prerequisite to

injunctive relief ‘‘presents an important question which

should be settled by the Court’’; and (3) that the Court

of Appeals’ holding as to irreparable injury ‘‘probably”’

conflicts with the applicable case law of this Court.

For the reasons stated below, we respectfully submit

that the petition lacks merit.

ARGUMENT

THERE iS NO SPLIT OF AUTHORITY BETWEEN

CIRCUITS ON THE QUESTION WHETHER “DELIB-

ERATE, COVERT AND CONSPIRATORIAL CON.

DUCT” IS REQUISITE TO INJUNCTIVE RELIEF

FOR VIOLATION OF THE FEDERAL SECURITIES

LAWS.

A. The Per Curiam Order of the Eighth Circuit Which

Petitioners Cite as Creating a Conflict Between Cir-

cuits Has No Precedential Value.

Astonishingly, petitioners’ claim that there exists a con-

flict among circuits is premised upon a per curiam affir-

mance by the Court of Appeals for the Eighth Circuit

which the Eighth Cireuit itself specifically determined

had ‘‘no precedential value,’’* and which to Seventh Cir-

cuit Judge Pell (dissenting below) suggested only the

‘*possibility’’ of a split of authority between circuits.

P.A. 45. The per curiam order was entered in Tri-State

Motor Transit Co. v. National City Lines, No. 73-867 (Sth

* Rule 14 of the Court of Appeals for the Eighth Circuit provides

in relevant part:

“Rule 14. Affirmed or enforced without opinion. When the

Court determines that any one or more of the following circum-

stances exists and is dispositive of a matter submitted to the

Court for decision: * * * (4) that no error of law appears;

and the Court also determines that an opinion would have no

precedential valuc, the judgment or order may be affirmed or

enforced without opinion.

“In such case, the Court may in its discretion enter either of

the following orders: ‘Affirmed. See Rule 14,’ or ‘Enforced.

See Rule 14.’" (Emphasis supplied.)

The per curiam affirmance of the Eighth Circuit in Tri-State states :

“Affirmed. See Rule 14 of the Rules of this Court.” (A. 3).

§

Cir. April 4, 1974). Since the Eighth Circuit also directed

that the order was ‘‘not to be printed or published’’ (A.

3), we have appended it to this brief for the conveni-

ence of this Court. As Judge Pell also noted, there is no

factual development in the order (P.A. 45), the Eighth

Cireuit having observed: ‘‘It is axiomatic that the issu-

ance of injunctive relief is committed to the trial court’s

diseretion.’’ (A. 3). A ‘‘possibility’’ of a split of au-

thority created by a decision without precedential value

does not warrant issuance of a writ of certiorart.

B. The Seventh Circuit’s Decision Is Consistent With the

Relevant and Considered Decisions of Other Courts

of Appeal.

If as petitioners suggest relief may be granted for

a section 13(d) violation only when there is ‘‘deliberate,

covert and conspiratorial conduct,’’ then the statutory

purpose

‘‘to alert the market place to every large, rapid ag-

gregation or accumulation of securities, regardless of

technique employed, which might represent a potential

shift in corporate control’’*

is completely vitiated.

Courts of Appeals which have considered the question

have held as did the Seventh Circuit in this case that the

state of mind and motivation of the securities law violator

is not determinative of whether or not injunctive relief

ean be granted.

* GAF Corp. v. Milstein, 453 F.2d 709, 717 (2d Cir.), cert. den.

406 U.S. 910 (1972). (Emphasis supplied).

7

For example, in SEC v. Great American Industries, Inc.,

407 F.2d 453 (2d Cir.), cert. den. 395 U.S. 920 (1969) the

SEC sought injunctive relief against the repetition of al-

legedly inadvertent errors in Great American’s SEC form

8-K reports.* Judge Friendly said:

‘‘The statute places the duty of filing correct reports

on the issuer; while inadvertence and prompt correc-

tion after complaint are mitigating circumstances and

may affect liability for damages, they do not defeat

the SEC’s right to injunctive relief.’’ 407 F.2d at 457.

In Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281 (2d

Cir. 1973) the Second Circuit held that the standard of

culpability in suits for damages for violation of the proxy

rules** does not require establishment of ‘‘any evil mo-

tive or even reckless disregard of the facts.’’ 478 F.2d at

1301. The court reasoned that whereas section 10(b) of

* Form 8-K is used for current reports filed pursuant to Section

13 or 15(d) of the Act, SEC Rule 13a-11 and 15d-11, 17 C.F.R.

§§ 240.13(a)-11 and 240.15(d)-11.

** Section 14(a) of the Act, 15 U.S.C. § 78n, makes it unlawful

for any person to solicit any proxy “in contravention of such rules

and regulations as the [Securities and Exchange] Commission may

prescribe as necessary or appropriate in the public interest or for

the protection of investors.” The SEC promulgated Rule 14a-9(a),

17 C.F.R. § 240.14a-9(a), prohibiting solicitation by means of a

proxy statement “containing any statement which, at the time and in

light of the circumstances under which it is made, is false or mislead-

ing with respect to any material fact, or which omits to state any

material fact necessary in order to make the statements therein not

false or misleading or necessary to correct any statement in any

earlier communication . . . which has become false or misleading.”

8

the Act* ‘‘emphasizes the prohibition of fraudulent con-

duct on the part of insiders to a securities transaction

. in section i4(a) Congress was somewhat more con-

cerned with protection of the outsider whose proxy is

being solicited,’’ 478 F.2d at 1299—just as in section 13(d)

Congress was more concerned with protecting outside in-

vestors who could not otherwise ‘‘assess the potential for

changes in corporate control and adequately evaluate the

company’s worth.’* GAF Corp. v. Milstein, 453 F.2d 709,

717 (2d Cir. 1971).** The Second Circuit also pointed out

in distinguishing section 10(b) cases from section 14(a)

eases that the former often relate to statements with re-

*15 U.S.C. §78j(b), pursuant to which the SEC adopted Rule

10b-5, 17 C.F.R. §240.10b-5, which broadly proscribes fraud in con-

nection with the purchase or sale of a security. In the Second Cir-

cuit liability for violation of Rule 10b-5 requires proof of “scienter”

—that is, “willful or reckless disregard for the truth.” Lanza v.

Drexel & Co., 479 F.2d 1277, 1306 (2d Cir. 1973). Contra, Ellis v.

Carter, 291 F.2d 270, 274 (9th Cir. 1961) ; Royal Air Properties, Inc.

v. Smith, 312 F.2d 210, 212 (9th Cir. 1962) ; Stevens v. Vowell, 343

F.2d 374, 379-380 (10th Cir. 1965); Myzel v. Fields, 386 F.2d 718,

734-735 (8th Cir. 1967), cert. denied, 390 U.S. 951 (1968) ; City

National Bank v. Vanderboom, 422 F.2d 221, 229-230 (8th Cir.),

cert. denied, 399 U.S. 905 (1970). Cf. SEC v. Van Horn, 371 F.2d

181, 185 (7th Cir. 1966).

** Indeed, the Williams Act was enacted as a companion to section

14(a): :

“Although individuals seeking control through a proxy contest

were required to comply with section 14(a) of the Securities

Exchange Act and the proxy rules promulgated by the SEC,

and those making stock tender offers were required to comply

with the applicable provisions of the Securities Act, before the

enactment of the Williams Act there were no provisions regu-

lating cash tender offers or other techniques of securing corpo-

rate control.” GAF Corp. v. Milstein, 453 F.2d at 717.

9

spect to important business and financial developments,

issued by corporations without legal obligation to do so,

and that imposition of too liberal a standard of culpability

would deter this desirable activity. This consideration

does not exist where, under section 14(a) as under section

13(d), the filing is required. 478 F.2d at 1300.

Petitioners cite SEC v. Culpepper, 270 F.2d 241 (2d

Cir. 1959), SEC v. Universal Service Association, 106 F.2d

232 (7th Cir. 1939) and U.S. v. W. T. Grant Co., 345 US.

629 (1935) for the proposition that ‘‘even the Securities

and Exchange Commission .. . is not entitled to injunctive

relief unless it proves that there is a reasonable expecta-

tion of future violations’’ (Petition at 10). The continued

viability of this test is open to question. See SEC v. Great

American Industries, Inc., 407 F.2d 453 (2d Cir.), cert.

denied 395 U.S. 920 (1969). Moreover, this Court said in

U.S. v. W. T. Grant Co., supra:

‘‘The chancellor’s decision is based on all the cir-

cumstances; his discretion is necessarily broad and a

strong showing of abuse must be made to reverse it.

To be considered are the bona fides of the expressed

intent to comply, the effectiveness of the discontinu-

ance and, in some cases, the character of the past vio-

lations.’’ 345 U.S. at 633.

The Seventh Circuit had before it an extensive record of

deposition testimony and molded its decree to the necessi-

ties of the particular case, as required by Hecht Co. v.

Bowles, 321 U.S. 321, 329-30 (1944), letting the ‘‘punish-

ment fit the erime’’ as suggested in the context of the

federal securities laws by the Second Circuit in Electronic

Specialty Co. v. International Controls Corp., 409 F.2d

937, 947 (2d Cir. 1969). ‘‘It is for the federal courts “to

adjust their remedies so as to grant the necessary relief’

where federally secwred rights are invaded.’’ J. I, Case

Co. vy. Borak, 377 US. 427, 483 (1964)

10

In any event, the cases cited by petitioners deal only with

the question when it is appropriate expressly to enjoin

future violations. They are wholly inapposite to the Court

of Appeals’ direction that the district court should enter

a remedial decree prohibiting voting of those shares pur-

chased in violation of the Act for a period of five years

‘‘to neutralize Rondeau’s violation of the Act and to deny

him the benefit of his wrongdoing’’ (P.A. 33), as was done

in Chris-Craft Industries, Inc. v. Bangor Punta Corp., 480

F.2d 341 (2d Cir.), cert. den. 414 U.S. 979 (1973).

II.

IRREPARABLE INJURY TO THE PRIVATE PARTY

SEEKING INJUNCTIVE RELIEF IS NOT ESSENTIAL

WHERE THAT PARTY IS ACTING TO VINDICATE

THE PUBLIC INTEREST IN ENFORCEMENT OF A

FEDERAL REGULATORY SCHEME.

Petitioners suggest that a ‘‘cornerstone of equitable

law’’ was ‘‘overturned’’ and that conflict with applicable

decisions of this Court was created by the Court of Ap-

peals’ holding that Mosinee, the corporate entity, need

not suffer ‘‘irreparable injury’’ as a prerequisite to in-

junctive relief. Petitioners ignore the context in which

this case arose. Mosinee’s action was to enjoin violation

of a federal securities law enacted by Congress to protect

the investor’s interest in disclosure of facts essential to

informed investment decision-making. This Court has

held :

‘“*Courts of equity may, and frequently do, go much

farther both to give and withhold relief in further-

ance of the public interest than they are accustomed

to do when only private interests are involved.’ ”’

U.S. v. First National City Bank, 379 U.S. 378, 383

11

(1965), quoting Virginian D. Co. v. Federation, 300

U.S. 515, 552 (1937).

In vindication of the ‘‘ paramount public interest’’ in en-

forcement of the federal securities laws,* the Courts of

Appeals have observed this principle by analytically bal-

ancing the interests involved instead of restricting inquiry

to the particular interest of the party seeking the injunc-

tion:

‘*Finally, in balancing the equities, the public in-

terest must be considered. If G&W is in fact pro-

ceeding in violation of the antitrust and securities

laws, a prelimigary injunction would serve the pub-

lie interest as much as A&P’s private interests. In

this regard, by asserting these claims, A&P is as-

suming a dual role, including that of a private at-

torney general. Since it is impessible as a practical

matter for the government to seek out and prosecute

every important violation of lows designed to pro-

tect the public in the aggre ate, private actions

brought by members of the public in their capacities

as investors or competitors, which incidentally bene-

fit the general public interes!, perform a vital public

service. As the Supreme Court said in J. I. Case Co.

v. Borak, 377 U.S. 426, 432 (1964), private actions

provide ‘a necessary supplement’ to actions by the

government and ‘the poss bility of civil damages or

injunctive relief serves » «® most effective weapon

in the enforcement’ of laws designed to protect the

public interest.’’

Gulf & Western Industries, lnc. vy. Great A. € P. Tea Co.,

Inc., 476 F.2d 687, 698-99 (2d Cir. 1973), cited with approval

in a Williams Act case by the Thord Cirewit in Ronson Corp.

v. Liquifin Aktiengesellschaft, 83 F.2a S46, 849 (3d Cir.

* U.S. v. Griesa, 481 F.2d 276. & 2i09r

Sj

Lf

12

1973). The point was made again in Chris-Craft Indus-

tries, Inc. v. Piper Aircraft Corp., 480 F.2d 341, 386-87 (2d

Cir.), cert. den. 414 U.S. 910, 924 (1973). See Minnesota

Mining and Mfg. Co. v. Meter, 385 F.2d 265, 272 (8th Cir.

1967).

The Court of Appeals in this case took just such a balanc-

ing approach in finding ‘‘harm’’ to the public which re-

sulted from Rondeau’s failure to meet Williams Act filing

requirements and which will result if violations of such re-

quirements, however well-intentioned, are disregarded by

the courts.

in none of the cases cited at page 12 of the Petition for

the proposition that ‘‘irreparable injury has traditionally

been a prerequisite to granting an injunction on a private

cause of action’’ was the party seeking injunctive relief

‘‘assuming a dual role, including that of a private attorney

general.’’ Gulf & Western Industries, Inc. v. Great A. & P.

Tea Co., Inc., supra, 476 F.2d at 699. In Pa. v. Wheeling &

Belmont Bridge Co., 54 U.S. (13 How.) 518 (1851), Penn-

sylvania sought to abate as a nuisance a bridge across the

Ohio River that stopped some traffic on the river thereby

reducing the state’s revenue from the operation of connect-

ing canals and railroad lines; in Beacon Theaters v. West-

over, 359 U.S. 500 (1959), the plaintiff wanted to end the

threat of impending antitrust lawsuits; in Cameron v.

Johnson, 390 U.S. 611 (1968), the plaintiffs were asserting

personal constitutional rights; and in Locomotive Engi-

neers v. M.-K.-T. R. Co., 363 U.S. 528 (1960), the union

sought to maintain the wages of its members affected by

a disputed work-force reduction pending the decision of

the National Railroad Adjustment Board. In each of these

eases the remedy sought would benefit only the party

seeking it.

——

13

CONCLUSION

Respondent submits that this case does not meet the

standards set by this Court for issuance of a writ of

certiorart. There are no special and important reasons

for review of the Seventh Circuit decision. There has been

no viable demonstration that the Seventh Circuit failed

to apply established legal principles to the facts of this

ease. The conflict between circuits suggested by peti-

tioners is an illusion. For the foregoing reasons, respon-

dent respectfully submits that the petition for writ of

certiorari should be denied.

Respectfully submitted,

James A. URDAN

LaurENcE CC, Hammonp, Jr.

W. Srvarr Parsons

DarryL BELL

780 North Water Street

Milwaukee, Wisconsin 53202

414/273-3700

Attorneys for Respondent

November 11, 1974

APPENDIX

APPENDIX

UNITED STATES COURT OF APPEALS

For Tue Eicnta Crrcvuir

No. 73-1867

Tri-State Motor Transit Co.,

Plaintiff-Appellant,

v.

National City Lines, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Missouri.

Submitted: March 13, 1974.

Filed: April 4, 1974.

Before Grisson, Bricnt, and StepHenson, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Tri-State Motor Transit Co. (Tri-

State) sought injunctive relief in the Western District of

Missouri against the following defendants each of whom

allegedly had purchased shares of Tri-State’s common

stock: National City Lines (National), National City

’ Truck Rental Company (a wholly owned subsidiary), and

Bertram B. Beveridge and Walter F. Carey, directors of

National.

A.2

Count I of the complaint alleged a violation of Section

13(d) of the Securities Exchange Act of 1934, 15 U.S.C.

§78m(d) (known as the Williams Act), on the ground that

National had failed to file the requisite statement with the

Securities and Exchange Commission upon its acquisition

of stock resulting in the ownership of more than five per-

cent of Tri-State’s stock.

Count I of the complaint alleged a violation of Section

5 of the Interstate Commerce Act, 49 U.S.C. §5(2), on the

ground that National had not obtained the requisite con-

sent of the Interstate Commerce Commission before under-

taking the acquisition of Tri-State’s stock.

Plaintiff moved for summary judgment and defendants

moved to dismiss counts I and II pursuant to Fed. R. Civ.

P. 12(b)(6). In a memorandum and order filed July

27, 1973, Judge Oliver granted defendants’ motion to dis-

miss count II of the complaint on the ground that the In-

terstate Commerce Act did not authorize a private right

of action for a violation of Section 5. See B. F. Goodrich

Co. v. Northwest Industries, Inc., 424 F.2d 1349 (3d Cir.),

cert. denied, 400 U.S. 822 (1970). The remainder of the

motion was denied.

Subsequently, an elaborate stipulation of all relevant

facts was submitted to the court, and, in a memorandum

and order filed October 10, 1973, Judge Oliver granted a

motion for summary judgment for defendants as to count [

of the complaint on the ground that, since the stipulated

facts revealed no ‘‘deliberate covert and conspiratorial non-

compliance with the requirements of 13(d),’’ injunctive re-

lief was not warranted. See Mosinee Paper Corp. v.

Rondeau, 354 F. Supp. 686 (W.D. Wis. 1973).

ee

A.3

It is axiomatic that the issuance of injunctive relief

is committed to the trial court’s discretion. We find no

abuse of discretion in Judge Oliver’s refusing an injunc-

tion and granting summary judgment for defendants under

count I. We also agree with Judge Oliver’s construction of

the statute in count II.

Affirmed. See Rule 14 of the Rules of this Court.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

[Not to be printed or published. }