# Opposition Brief — Trager, Glass & Co. v. Newmyer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1231%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 930 ## Text APR i2 BH >pPaN!OL, JR. In The a Supreme Court of the United States TRAGER GLass & COmpPANy P, fifione 7 VS 1) L- oot \ e ) JOSEPH M NE \\ MYER f HN \V\ KWIATKOWSKI, JOHN C. Ce ind Tosin R. Cot a : Re spondents BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THI UNITED STATES SUPREME COURT Harry S. Stark (P-20905 MicHaeL H. Wuitinc (P-22276 JosepH A. AHERN (P-357 10 Stark, Reagan & Finnerty, P.¢ Attorneys for Res} nmdent Suite 202 1111 West Long Lake R Troy, Michigan 45084 ,153 64] G55 ROMAN PRINTING ORPORATION. 550 FORT STREFT DETROIT MICHIGAN 4522¢ 2 i4 QUESTIONS PRESENTED I. WHETHER THIS COURT SHOULD REVIEW A NON- FINAL ORDER OF AN UNITED STATES APPELLATE COURT? I. WHETHER THIS COURT SHOULD REVIEW ISSUES WHICH WERE NOT PROPERLY BEFORE EITHER THE DISTRICT COURT OR THE COURT OF APPEALS? TABLE OF CONTENTS QUESTIONS PRESENTED i. WHETHER THIS COURT SHOULD REVIEW A NON-FINAL ORDER OF AN UNITED STATES APPELLATE COURT? .......... Il. WHETHER THIS COURT SHOULD REVIEW ISSUES WHICH WERE NOT PROPERLY BEFORE EITHER THE DISTRICT COURT OR THE COURT OF APPEALS? ...... TABLE OF AUTHORITIES STATEMENT OF THE CASE i & : ere ADRS NEE 6.0 os dnc eee I. IT. THE DECISION OF THE SIXTH CIRCUIT IS A NON-FINAL ORDER AND THERE ARE NO CIRCUMSTANCES WHICH WARRANT THIS COURT'S REVIEW .............. THE PETITION FOR WRIT OF CERTIORARI SHOULD NOT BE GRANTED BECAUSE THE PETITIONER IS REQUESTING THIS COURT TO EXAMINE ISSUES WHICH WERE NOT ADDRESSED BY THE SIXTH CIRCUIT COURT OF APPEALS NOR BY THE DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN CONCLUSION Page i INDEX OF AUTHORITIES Cases: Adams v. Mills. 286 U.S. 397, 52 S.Ct. 589 (1932) Sy te ae American Construction Company v. Jacksonville, TCKCR. Co., 148 US. 372, 13 S.Ct. 758 1893) Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.., Bao ue. aon, oe (191G)............6.-. Lynch v. United States, 292 U.S. 571. 54 S.Ct. $40 (1934). \ 8 De a ara McCullough v. Kammerer Corp., 323 U.S. 327, a ag SS ) Ee io”) rn ec GAGE Ss es Se el age New York Dock Co. v. S.S. Poznan, 274 U.S. 117, 198, 56 S.Ct. 387 (1936) Zellerbach Paper Co. v. Helvering, 293 U.S. 172. 29 S.Ct. 127 (1934)... United States v. Nixon. 418 U.S. 683, 94 S.Ct. 3090 (1974) Statutes: 15 U.S.C. Section 771 15 U.S.C. Section 7Saa 15 U.S.C. Section 78j(b) 18 U.S.C. Section 1962 Piet Meek sits Page STATEMENT OF THE CASE In November of 1986, the first of the Respondents’ Com- plaints were filed alleging, inter alia, violations of the Fed- eral Securities Laws and the Racketeer Influenced and Corrupt Organizations Act (““RICO”’). In response to these complaints, four of the Defendants filed Motions to Dismiss. Before any discovery was initiated, the lower court dismissed the Plain- tiffs’ Complaint, holding that the investments were not secu- rities under the Securities Exchange Acts of 1933 [15 U.S.C. Section 771] and 1934 [15 U.S.C. Section 78aa and 78j(b)|. The lower court also held that there was not a requisite pattern of racketeering activity pursuant to the Racketeer Influence Corrupt Organization Act [18 U.S.C. Section 1962]. On appeal, the Sixth Circuit reversed and remanded the case to proceed to trial in accordance with its decision. One of the Defendants, Trager, Glass & Company, has asked this Court to grant its Petition for Writ of Certiorari to reverse the decision of the Sixth Circuit Court of Appeals relative to the securities law issue only. Respondents argue that this Court should not exercise its discretionary power in granting Writ of Certiorari on this matter. FACTS Respondents. for purposes of this response, will accept Petitioner's version of the facts ARGUMENT Petitioner seeks review of the lower court's interlocutory order pursuant to a Writ of Certiorari under 28 U.S.C. Sec- tion 1254(1). Jurisdiction to review judgments and decrees of the Court of Appeals by certiorari is to be exercised spar- ingly, and only in cases of gravity and general importance, or in order to secure uniformity of decision. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 US 251, 258 (1916) iv I. THE DECISION OF THE SIXTH CIRCUIT IS A NON-FINAL ORDER AND THERE ARE NO CIRCUMSTANCES WHICH WARRANT THIS COURT'S REVIEW Although a writ may issue on an interlocutory order, the Supreme Court will not exercise its jurisdiction “unless it is | necessary to prevent extraordinary inconvenience and embar- rassment to the conduct of the cause’. American Construc- tion Company v. Jacksonville, T & K. R. Co., 148 U.S. 372, 13 S.Ct. 758 (1893). In other words, only under the most extraor- dinary circumstances will the Supreme Court hear a non- final order, See, for example, United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090 (1974). An examination of the hold- ing of the Sixth Circuit clearly indicates the inappropriate- ness of Supreme Court review in this matter. In its Petition for Writ of Certiorari, Petitioner claims: “The Sixth Circuit Panel (J. Merritt, J. Nelson, J. Celebrezze) determined that Plaintiffs’ investment in Defendant Philatelic Leasing’s tax shelter program con- stituted investment in a security.’ The Sixth Circuit determined no such thing. What the Sixth Circuit did do, however, was to afford the Plaintiffs an oppor- tunity to have their day in Court. The Sixth Circuit, rather than make a determination that the investment was a secu- rity, simply stated that it would not rule out the possibility that the investments could be a security. The Opinion is replete with such references: and if the Plaintiffs in the present litigation are | able to prove their cases, the committment given by the distribution company here..." (p. 17). ‘Having read Philatelic’s offering memorandum, how- ever, with its glowing account of the popularity of stamp collecting, we cannot rule out the possibility that Phil- atelic investors hoped to realize ‘profits’ in the true sense of the term.” (p. 20) wy oo 9 ‘These are factual questions, again, and the Defen- dants may ultimately prevail on them. But such ques- tions are not to be resolved against the Plaintiffs on Motions to Dismiss — at least not on the sort of record that is before us here.” (p. 21). oe 689 “We do not come to grips with the issue here, how- ever, given the clear possibility that at a trial of these cases, or in summary judgment proceedings, the Plain- tiffs may be able to show that their arrangements with Dell got them over the commonality hurdle’. (p. 23). The decision is clearly interlocutory. If there is an issue in this case which the Supreme Court should review, this review should occur after a properly developed record. Il. THE PETITION FOR WRIT OF CERTIORARI SHOULD NOT BE GRANTED BECAUSE THE PETITIONER IS REQUESTING THIS COURT TO EXAMINE ISSUES WHICH WERE NOT ADDRESSED BY THE SIXTH CIRCUIT COURT OF APPEALS NOR BY THE DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN The Petitioner requests that this Court settle the issue of Horizontal versus Vertical commonality as an element in the determination of whether the Philatelic investment was a security. The Petitioner points to the split in authority between the Circuits as a compelling reason tor Supreme Court review There may well be such a split in the circuits. However, that issue was not addressed either at the District Court level or by the Sixth Circuit and, therefore, may not be raised at this time. In both the United States District Court for the Eastern District of Michigan, and the Sixth Circuit Court of Appeals both the Plaintiffs and the Defendants acknowledged that horizontal commonality was required in the Sixth Circuit Again, it should be noted that the Court did not hold that the Philatelic investments satisfied the commonality requirement but rather held that it was not impossible for the Plaintiffs to catisty this burden at trial It is axiomatic that issues not raised below cannot be raised for the first time before an appellate court, especially the United States Supreme Court. Neu York Dock Co. v. S.S Poznan. 274 U.S. 117, 71 L.Ed. 955, 47 S.Ct. 482 (1927 Adams v. Mills. 286 U.S. 397, 76 L.Ed. 1184, 52 S.Ct. 589 1932): Minnich v. Gardner, 292 U.S. 48, 73 L.Ed. 1116, 54 S.Ct. 567 (1934): Lunch v. United States, 292 U.S. 571, 73 L.Ed. 1434. 54 S.Ct. $840 (1934) Zellerbach Paper Co. \ Helvering, 293 U.S. 172, 79 L.Ed. 264, 55 S.Ct. 127, 35-1 US.TC. Para 9003. 14 AFTR 688 (1934); Prudence Co Fidelity & Deposit Co., 297 U.S. 198, 80 L.Ed. 581, 56 S.Ct 387 (1936): McCullough v. Kammerer Corp., 323 U.S. 327 S9 L.Ed. 273.65 S.Ct. 297,64U.S PO 7 (1945). Theretore this Court should not grant certiorari review of the com monalityv issue Jt CONCLUSION This case is not one which the United States Supreme Court should consider hearing — at least not vet. In the unlikely event that the Supreme Court decides that the issues presented in the Petitions Writ of Certiorari are worthy of its consideration, this Court should examine these issues after a proper record has been established pursuant to normal dis- covery and trial. Therefore. the Respondents request that this Court deny the Writ of Petition for Certiorari Respecttully submitted STARK, ReaGan & Finverty. PC. / f i \ ) { a x Ja P =~ ~~ By: — Harry S.Atark (P-20908 Micusetl. H. Wuitinc (P-22276 JosEpH A. AHERN (P-38710 Attorneys for Plaintiffs Suite 202 L111 West Long Lake Road Trov, Michigan 48084 313) 641-9955 DATED: April 5, 1990 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1231%3A3. Public record. Not legal advice.