# Appendix — United States ex rel. Brensilber v. Bausch & Lomb Optical Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0069%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1943 - **Citation:** 320 U.S. 711 ## Text INDEX PAGE Statement under Rule 13 ...................... 1-2 EN Sarda kane eh Oe kdeeis awcae tune tan 3-10 Order to show cause dated Jan. 2 ae 11-12 Affidavit of Whitney North Seymour .......... 13-16 Affidavit of M. Herbert Eisenhart ............ 17-31 Affidavit of Carl L. Bausch .................. 32 Affidavit of Theodore B. Drescher ............ 33 Affidavit of E. Herman Anthes .............. 34-36 Affidavit of Russel E. Craytor .............. 37-38 Notice of motion dated January ©, FOOD 2c ccnces 39-40 Affidavit of Karl A. Bauer .................. 41-45 Order to show cause, dated January 14, 1942 .. 46-48 Affidavit of Whitney North Seymour ........ 49-53 Notice of rejection, dated January 14,1942 .... 54 Affidavit of Jack Kemp Busby .............. 55-56 Order to show cause dated January 14, 1942 .... 57-59 Affidavit of Joshua D. Jones ................ 60-63 Answering affidavit of Emanuel Thebner ...... 64-76 Corroborating affidavit of Murray Brensilber .. 77 rere 78-85 Indictment of defendants (C 107—169) ...... 86-111 Bill of particulars (C 107—169) as to Bausch EE aah ceeige VeewG bo aKeW en Saeubee turers 112-193 ee... ccduebdecnudededeustusdnecaactuecaeus Bill of complaint in equity and exhibits attached Cheveek .cccecsccvces Consent decree in equity ii eee eee eee ee eee eres ee Replying affidavit of Whitney North Seymour .. Order declaring amended complaint a nullity .... Order and judgment of dismissa] dated January 24, 1942 and February 2, 1942 respectively Notice of appeal ....... Stipulation as to record Clerk’s certificate ...... eee eee eee eee eee eee ereeee eee ee eee eee ee eeeeeeeee Proceedings in U. 8. C. C. A., Second Circuit Opinion, per curiam . Judgment ... Clerk’s certificate Order allowing certiorari —7027 (omitted in printing) PAGE 249-253 254-258 259-262 —— United States Cirrnit Court of Appeals FoR THE SECOND CIRCUIT »s a UNITED STATES OF AMERICA on the relation of MURRAY BREN- SILBER and EMANUEL THEBNER, and MURRAY BRENSILBER and EMANUEL THEBNER, in their own behalf, Plaintiffs-Appellants, —against— Bavuscu & Loms Optica, Company, CarL ZEISS, INc., M. id. EISENHART, CARL L. BAUSCH and THEODORE B. DRESCHER, Defendants-Respondents. _ — — Statement Under Rule 13. This action was commenced in the United States District Court for the Southern District of New York by filing a complaint on December 17, 1941. Copies of the summons and complaint were served on Bausch & Lomb Optical Co. and the individual defendants by the United States Marshal, Western District of New York, at Rochester, N. Y. The names of the parties are as herein above given. There has been no change of parties in this action since the commencement thereof. The defendants were not arrested nor was any bail taken. No property was attached. No trial has been had in this action. No question was referred to a commissioner, master or referee. Defendants moved before answering, in the District Court for summary judgment in defendants’ favor, pursuant to rule 56 and for an order under rule 12 of the Federal rules of Civil procedure, on papers served on or about January 6, 1942 and January 14, 1942 respectively. All motions were heard simultaneously by Hunorable Alfred ©, Coxe, Dis- trict Judge on the 16th day of January 1942. ei Statement Under Rule. Order for judgment granting defendants’ summary judg- ment and directing that judgment be entered for the defen- 4 dants, dismissing the complaint on the merits together with the costs and disbursements of the action was entered in the office of the Clerk of the District Court on January 24, 1942 and judgment dismissing the complaint of the plaintiffs upon the merits with costs in favor of the defendants was filed and entered in the office of the Clerk of the District Court on February 2, 1942. A further order declaring plaintiffs’ amended complaint a nullity was entered in the Office of the Clerk of the District Court on the 24th day of January 1942. The appeal herein was taken on February 6, 1942 and a 5 supersedeas and cost bond was duly filed herein. : a : Original Complaint. UNITED STATES DISTRICT COURT SOUTHERN DIsTRIcT or NEw YoRK , ™ 7 —— UNITED STATES OF AMERICA on the relation of MURRAY BREN- SILBER and EMANUEL THEBNER, and MURRAY BRENSILBER and EMANUEL THEBNER, in their own behalf, Plaintiffs, —against— BauscH & LoMB OpTicaAL COMPANY, CARL ZEIss, INc., M. H. EISENHART, CARL L. BAuscH and THEODORE B. DRESCHER, Defendants. —-> 8 Plaintiffs complaining of the defendants respectfully al- lege as follows: First: That the plaintiffs are and at all times herein mentioned were, and each of them is, a citizen of the United States of America and of the State of New York, and each of them is a resident of the State of New York. Second: The plaintiffs bring this action in behalf of the United States of America and in their own behalf by virtue of and pursuant to United States Revised Statutes Sections 3490-3494 (31 U. S. (, 231-235) under which said statutes this action arises. The matter in controversy exceeds, ex- 9 clusive of interest and costs, the sum of $3000.00. Third: Upon information and belief that the defendant, Bausch & Lomb Optical Company is a New York Corpora- tion and has maintained and now maintains an office and place of business in the Borough of Manhattan, City of New York within this Southern District of New York, and has 10 11 12 4 Original Complaint. transacted business and now transacts business within sa District. Fourth: That upon information and belief, Carl Zei Inc. is a New York Corporation and has maintained a1 now maintains its principal office in the Borough of Ma hattan, City of New York within this Southern District New York, and has transacted business and now transac business within said District. Fifth: Upon information and belief, M. H. Eisenha Carl L. Bausch and Theodore B. Drescher, are and each them is and was at the times herein mentioned, associat with Bausch & Lomb Optical Company and Car] Zeiss In and has held and at the present time hold the position of | officer and director of each of said corporations and we and are actively engaged in the management, direction a control of the affairs and policies of said corporations. Sixth: Upon information and belief that the said Baus & Lomb Optical Company and Car! Zeiss Inc. are and we at the times herein mentioned engaged in the business manufacturing and selling of various instruments, amo others, periscopes, range finders, altimeters, bore-sigh bombsights, torpedo directors, sights for guns and ot] scientific optical instruments (except binoculars) used direct and control the firing of modern instruments of w fare, hereinafter referred to as “military optical inst ments”. Seventh: That upon information and belief the Unit States Government purchased such military optical inst ments for use on battleships, cruisers and submarines, a for use with aircraft and artillery. — 1 said Zeiss 1 and Man- ‘ict of nsacts nhart, ach of ciated s Inc., of an | were mn and 1S. sausch 1 were ess of among sights, other sed to yf war- instru- United instru- -s, and 5 Original Complaint. Eighth: The defendant, Bausch & Lomb Optical Com- pany, from on or about April 28, 1921, and the defendant Car] Zeiss Inc. from the date of its incorporation on or about December 11, 1925, and the individual defendants since the time they became officers and directors of said corporation to on or about March 29, 1940, together with other persons to the plaintiffs unknown, have been continuously engaged during and throughout the periods of time aforesaid, in an unlawful combination and conspiracy, not to sell directly or indirectly military optical instruments for use in the United States of America and the Government of the United States of America by either of them without the consent of the other and in the case of sales made by consent to the United States Government, to fix, maintain and control ar- bitrary, artificial and unreasonable prices and terms of sale of such military optical instruments, and agreed between them chat quotations of prices by either of them could be made cniy with the consent of the other, and that if either of them were requested to make or made bids for the sale of military optical instruments to the United States Gov- ernment, that such quotations and such bids would contain a markup over the regular price up to 20% of said regular price, and in case such bid were successful, the excess was to be paid by the successful bidder to the other contracting party. Ninth: That upon information and belief to the end and purpose aforesaid and to carry out and promote the unlaw- ful combination and conspiracy by and between them, the said corporate defendants entered into certain written agree- ments on or about April 28, 1921, and supplemental and modifications thereof on or about June 27, 1925, on or about October 28, 1925, on or about November 26, 1926, and on or 13 14 | 15 | 16 17 18 6 Original Complaint. about December 24, 1926, wherein and whereby the said cor- porate defendants bound themselves not to sell such mili- tary optical instruments directly or indirectly to the United States Government unless the parties have come to an agree- ment regarding the conditions of sale, and a royalty or percentage of the gross sales price of each military optical instrument sold to the United States Government by either of them to be paid to the other, and agreed, among other things, that neither of them would make or give quotations or bids for sales of military optical instruments without the consent of the other, and that the price quoted should be agreed upon between them, and that on all such bids by either of them to the United States Government, such bids and quotations would contain a markup over the regular price up to 20% over the regular price, which excess in case such bid were successful, was to be paid by the suc- cessful bidder to the other contracting party. Tenth: That upon information and belief, between April 28, 1921 and March 29, 1940 the combination and conspiracy hereinbefore alleged has been operated and carried out in part within the Southern District of New York and said corporate defendants have by their concerted action afore- said, sold, shipped and delivered military optical instru- ments to the Government of the United States at arbitrary, artificial and unreasonable and noncompetitive prices agreed upon by the defendants, and said defendants received pay- ments from the United States Government for the sale and delivery of such military optical instruments which they divided between them in accordance with their said agree- ments. Eleventh: Upon information and belief that in pursu- ance of said conspiracy, combination and agreements by 7 Original Complaint. the defendants, they severally at various times between May 1921 and March 1940, did submit to the Government of the United States bids for contracts for the manufacture and sale and the sale of military optical instruments and other articles and materials to be used by the United States Government in the War, Navy and other departments and bureaus of the Government at prices that pretended to be and were represented to be, and which the Government of the United States and the officer and officers authorized to accept such bids and enter into such contracts for manufac- ture and sale, and the sale and delivery of such military optical instruments, articles and materials for which bids were submitted and contracts therefor and sales and de- livery thereof made, believed to be the normal, prevailing and competitive prices of such military optical instruments, articles and materials, but which in fact were not the nor- mal, prevailing and competitive prices therefor but were about 20% in excess of the normal, prevailing and competi- tive prices for such military optical instruments, articles and materials, and the officer or officers authorized to accept such bids and enter into such contracts of sale and make such purchases on behalf of the Government of the United States, the Treasury, War and Navy Departments, respec- tively, without knowledge of the conspiracy, combination and agreement aforesaid entered into by the defendants, ac- cepted various bids submitted by the defendants severally ut various times, the exact dates of which are presently un- known to the plaintiffs, for manufacture and sale and the sale of military optical instruments and other articles and materials to the Government of the United States in the War and Navy Departments thereof, and said officer or officers on behalf of the Government of the United States, its Treasury, War and Navy Departments, did make vari- 19 20 21 22 23 24 8 Original Complaint. ous purchases from time to time, the exact dates of which are unknown to the plaintiffs, of such instruments, articles and materials to be supplied to the War and Navy Depart- ments in large quantities and amounts, the exact prices, amounts and particulars of which are presently unknown to the plaintiff. Twelfth: Upon information and belief that at various times between May 1921 and March 1940, the defendants severally and from time to time, the exact dates being at present unknown to the plaintiffs, presented for payment and approval to various officers of the Civil, Military and Naval service of the United States, bids, claims, invoices, bills, vouchers and statements and accounts against the United States for purchases of military optical instruments and other articles and materials upon the aforesaid bids, contracts and sales in large sums of money, the exact amount of which is at present unknown to the plaintiffs, the defen- dants knowing that such bids, claims, invoices, bills, vouch- ers, statements and accounts were excessive, false, ficti- tious and fraudulent by reason aforesaid, and in that said defendants added to the normal, prevailing and competitive prices, an amount equal to about 20% arbitrarily pursuant to the conspiracy, combination and agreement between the defendants aforesaid, and said claims, bills, statements and accounts were respectively paid and satisfied. Thirteenth: That upon information and belief the in- dividual defendants and each of them participated in and aided and abetted in the matters and things herein alleged. Fourteenth: Upon information and belief, 20% of the amount of such bids, claims, invoices, bills, statements and accounts which contained the 20% added to the regular price that were presented by the defendants and which 9 Original Complaint. they caused to be presented for payment and approval and obtained payment thereof from the Government of the United States, the Treasury, Navy and War Departments, respectively in the year 1938 amounted in the aggregate, and was equal to about the sum of $8,000,000. in which said sums the defendants are indebted to the United States Gov- ernment, and various sums of money in other years, the exact amount of which is at present unknown to the plain- tiffs, which said sums the defendants are indebted to the United States Government. Fifteenth: Upon information and belief that prior to March 1940 and at the time of the commission of the acts and conduct complained of in paragraphs “Eleventh” and “Twelfth” hereof, the corporate defendants manufactured, distributed and sold the greater part of all the military optical instruments manufactured and sold in the United States of America and in foreign countries. Sixteenth: That upon information and belief the agree- ments, acts and conduct of the defendants constituted a fraud upon the United States of America and were and are against the Public Volicy, and were a violation of the Re- vised Statutes of the United States, §§3490-3494 (U.S.C. 231-235). Seventeenth: That upon information and belief the afore- said agreements by and between the defendants herein, and the aforesaid acts and conduct constituted also an unlawful combination and conspiracy in violation of the Statutes of the United States and more particularly the Act of Con- gress of July 2, 1890 entitled “An Act to Protect Trade and Commerce Against Unlawful Restraints and Monopolies” (U.S.C. Title 15, See. 1) and the Amendments thereof. 25 27 ~~ 10 Original Complaint. Eighteenth: Upon information and belief the defendants are not and were not at the times herein mentioned, nor any of them, in the military or naval service of the United States or in the Militia called into or actually employed in the service of the United States. 28 Nineteenth: By reason of the premises, and the acts and conduct of the defendants and the Statutes of the United States in such case made and provided, the defen- dants are indebted to the Government of the United States in the sum of about $20,000,000. in which amount the Gov- ernment of the United States sustained damages and the defendants shall forfeit and pay to the United States the sum of $2,000. for each of said transactions and in addition 29 double the amount of damages sustained by the Government of the United States, and of which amount of damages and forfeitures the plaintiffs herein are entitled to receive one- half of such forfeitures and amount of damages which they shall recover and collect, and all costs the Court may award against the said defendants. WHEREFORE plaintiffs demand judgment against the de- fendants for the sum of double the amount of said damages aforesaid, to wit, $40,000,000., and in addition thereto the amount of forfeitures and penalties as ascertained and de- termined by this Court, which shall be at least in the sum of $2,000. together with the interest on said sums and the 30 costs of this action. EMANUEL THEBNER, Attorney for Plaintiffs, Office & P. O. Address, 111 John Street, Borough of Manhattan, City of New York. 11 Order to Show Cause Dated January 6, 1942. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ip, UNITED STATES OF AMERICA on the relation of MURRAY BRENSILBER and EMANUEL THEBNER, in their own behalf, Plaintiffs, —against— Bavuscu & LOMB OPTICAL COMPANY, CARL ZEIss INC., M. H. EISENHART, CARL L. BAUSCH and THEODORE B. DRESCHER, Defendants. »™ as On the summons and complaint and upon the Marshal’s returns herein, all filed in this Court, and upon the annexed affidavits of Whitney North Seymour, M. Herbert Eisenhart, Carl L. Bausch, Theodore B. Drescher, E. Herman Anthes and Russell E. Craytor, sworn to this 5th day of January, 1942, let the plaintiffs herein and each of them show cause before this Court, at a stated term for the hearing of motions to be held in Room 506 of the United States Court House, Foley Square, in the Borough of Manhattan, City, County and State of New York, on the 16th day of January, 1942, at 10:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, why an order should not be entered herein, (a) Dismissing this action and the complaint herein as against the defendants Bausch & Lomb Optical (om- pany, M. H. Eisenhart, Carl L. Bausch and Theodore B. Drescher, on the ground that the venue of this action as to the said defendants has been improperly laid in the Southern District of New York; 31 33 34 36 12 Order to Show Cause Dated January 6, 1942. (b) Dismissing this action and the complaint herein as against the said defendants, on the ground that the complaint fails to state a claim against these defendants upon which relief can be granted ; (c) Granting summary judgment to these defendants on the ground that the complaint and affidavits herein show that there is no genuine issue as to any material fact herein and that these defendants are entitled to judgment against the plaintiffs as a matter of law; and for such other and further relief as to this Court may seem just and proper, together with the costs of this motion. Sufficient cause appearing therefor, it is ORDERED that the time of the defendants Bausch & Lomb Optical Company, M. H. Eisenhart, Carl L. Bausch and Theodore B. Drescher to answer the complaint herein be and the same hereby is extended to and including ten (10) days after entry of an order disposing of this motion; and it is FURTHER ORDERED that service of a copy of this order and the affidavits annexed, at the office of Emanuel Thebner, attorney for plaintiffs, 111 John Street, Borough of Man- hattan, City, County and State of New York, on or before six o’clock P. M. on January 7th, 1942, be deemed sufficient service hereof. Dated, New York, N. Y., January 6th, 1942. ALFRED C. COXE, United States District Judge. - AFFIDAVIT OF WHITNEY NORTH SEYMOUR AN- NEXED TO ORDER TO SHOW CAUSE DATED JANUARY 6, 1942, 13 UNITED STATES DISTRICT COURT 37 SOUTHERN DIstrict or New YorkK (sap TITLE] STATE OF NEW YORK, CouNTY OF NEW YORK, 88. : WHITNEY Nortu SEYMOUR, being duly sworn, deposes and says: 38 I am an attorney and counsellor at law and a member of the firm of Simpson Thacher & Bartlett, attorneys for the defendants Bausch & Lomb Optical Company, M. H. Eisenhart, Carl L. Bausch and Theodore B. Drescher in this action, on whose behalf the annexed motion is made. This affidavit is submitted by me on behalf of the said defendants in support of an application for an order to show cause why an order should not be made dismissing the complaint herein on the grounds: (1) that the venue of this action has been improperly laid in the Southern District of New York, (2) for failure to state a claim against these defendants upon which relief can be granted, and (3) for summary judgment on the ground that the complaint and affidavits herein show that there is no genuine issue as to any material fact herein and that defendants are entitled to judgment against plaintiffs as a matter of law. The grounds for this motion are more fully set forth in the annexed affidavits of M. Herbert Eisenhart, Carl L. Bausch, 39 a 14 Affidavit of Whitney North Seymour Read in Support of Order to Show Cause Dated January 6, 1942. Theodore B. Drescher, E. Herman Anthes and Russell E. Craytor. The reasons why it is desirable and necessary that this motion be brought on by order to show cause rather than the usual notice of motion, are as follows: 40 Rule 12 of the Federal Rules of Civil Procedure provides in effect that the service of any motion provided for in Rule 12 automatically extends the time for answering the com- plaint until ten days after disposition of the motion. The same Rule provides for motions to dismiss the complaint because of improper venue and for failure to state a claim upon which relief can be granted. It is not clear that affi- davits may be considered on a motion to dismiss on the latter ground in this District. These moving defendants believed that the Court should be provided upon this motion with certain additional facts demonstrating the absence of merit in this action, and it was, therefore, deemed advisable to move as well for summary judgment under Rule 56b. Although it is clear under that Rule that the motion for summary judgment can be made before answering, the Rule does not provide for an extension of time to answer upon the making of the motion, nor is it entirely clear that by joining the motion for summary judgment with the motion to dismiss the complaint these defendants secure for all pur- poses the benefit of the automatic extension provisions of Rule 12, since Rule 12g refers only to consolidation of motions made under that Rule. Therefore, this application for an order to show cause is made out of an abundance of caution as an application under Rule 6 to extend the time of these defendants for answering the complaint herein, and, for the reasons set forth below, to permit service of these motion papers in less than the ten days required by Rule 56c, if necessary. 41 42 15 Affidavit of Whitney North Seymour Read in Support of Order to Show Cause Dated January 6, 1942. These defendants were served in Rochester, N. Y., with the summons and complaint herein by a Deputy United States Marshal for the Western District of New York, on December 26, 1941. Their time for answering would expire on January 15, 1942 unless otherwise extended. With the holiday period and the time spent in preparing these papers, it has been impossible to make this motion returnable until January 16, 1942, since Rule 56 requires ten days’ notice of the motion for summary judgment. Under Rule 56c the plaintiffs herein should be served with the order to show cause and affidavits herein on January 6, 1942, if possible. It would have been difficult, if not impossible, for these defendants to have moved more promptly. It is respectfully requested that, in the event that this order to show cause is not signed in time for service thereof and of the papers upon which it was granted on the aforesaid January 6, 1942, this Court specify such subsequent date for the service of the same as it considers adequate and proper, and to that extent shorten the time necessary for the motion under Rule 56. This motion is made in good faith and not for purposes of delay. I verily believe from my investigation of the facts and circumstances of this action that there are good and sufficient defenses thereto, and have so informed these de- fendants. On behalf of my firm, I represented these defen- dants in the anti-trust litigation with the Government, referred to in the annexed affidavit of M. Herbert Eisenhart, and I am familiar with many of the facts set forth in said affidavit. My information leads me to believe that the Court will find this action not maintainable as a matter of law and without merit as a matter of fact. No previous application for similar relief has been made. 43 44 45 eee ee Y 46 47 16 Affidavit of Whitney North Seymour Read in Support of Order to Show Cause Dated January 6, 1942. WHEREFORE, it is respectfully requested that an order to show cause, in the form annexed hereto, be signed bringing this motion on for hearing on January 16, 1942, extending the time of these moving defendants to answer the complaint herein until ten days after the entry of an order upon said motion, and, in the event that service of the said order to show cause and the papers upon which it was granted cannot be made on January 6, 1942, as required by Rule 56c of the Federal Rules of Civil Procedure, providing that the same be served at such subsequent time and place as to the Court may seem just and proper; and that the motion herein be granted. (Sworn to by Whitney North Seymour, January 5th, 1942.) ~~" — AFFIDAVIT OF M. HERBERT EISENHART ANNEXED TO ORDER TO SHOW CAUSE DATED JANUARY 6, 1942. 17 UNITED STATES DISTRICT COURT 49 SOUTHERN DISTRICT OF NEW YORK — [SAMB TITLB] > > STATE OF NEW YORK, COUNTY OF MONROE, 88. : M. Hersert EIspNHART, being duly sworn, deposes and says: 50 I am the President and General Manager and a director of the defendant Bausch & Lomb Optical Company (herein- after sometimes called “Bausch & Lomb” for brevity) and also an individual defendant in this action. This affidavit is submitted in support of a motion made on behalf of said defendant Bausch & Lomb and the individual defendants to dismiss the complaint herein and for summary judgment in favor of said defendants upon the various grounds set forth in the order to show cause by which this motion is made returnable. The motion is brought on by order to show cause because I am advised by counsel and believe that it is desirable that an extension of time to answer the com- plaint be obtained during the consideration of this motion by the Court and until ten days after the decision hereon. The reasons for proceeding by order to show cause are more fully stated in the affidavit of Whitney North Seymour, Esq., of counsel for these defendants, which is annexed hereto. 51 7 Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. 18 The grounds of this motion may be summarized as follows: 52 I. The venue of this action has been improperly laid in the Southern District of New York and this action may not properly be maintained against these moving defendants in this District. II. The complaint fails to state a claim against these defendants upon which relief can be granted. III. No cause of action in fact exists against these defendants under United States Revised Statutes, Sec- tions 3490-3494 (31 U. S. C. A. §$231-235) under which 58 this action purports to be brought. For convenience this affidavit will proceed with reference to these grounds of the motion. I. Bausch & Lomb Optical Company and the individual de- fendants M. Herbert Eisenhart, Carl L. Bausch and Theodore B. Drescher are not and have not been found within the jurisdictional limits of this Court nor is any of them a resident or inhabitant of the Southern District of New York. Bausch & Lomb Optical Company owns and operates a large 54 manufacturing plant at Rochester, New York, in which mili- tary optical instruments, ophthalmic goods, scientific instru- ments and other products are manufactured. The executive office of the Company is at Rochester, New York. While the Company maintains a small office in the City of New York for limited purposes, it is believed that the facts here- inafter set forth and those set forth in the annexed affidavits of E. Herman Anthes and Russell E. Craytor show that T 19 Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. the maintenance of this office is not sufficient to lay the venue of this action in this District. I am a resident and inhabitant of the City of Rochester, New York, residing at No. 1316 East Avenue, in that City. The defendant Carl L. Bausch is a resident and inhabitant of the City of Rochester, New York, residing on Parsons Lane, in that City. The defendant Theodore B. Drescher is a resident and inhabitant of the City of Rochester, New York, residing at No. 99 Pelham Road, in that City. The City of Rochester is within the jurisdictional limits of the United States District Court for the Western District of New York and is not within the jurisdictional limits of the United States District Court for the Southern District of New York. Service of process in this action was made on these moving defendants in Rochester, New York, on Decem- ber 26, 1941, by a Deputy Marshal of the United States District Court for the Western District of New York. Refer- ence is made to the Marshal’s return upon said service of process in the files of this Court with the same force and effect as if set forth in full herein. The small office maintained by Bausch & Lomb at 30 Rockefeller Plaza, in the Borough of Manhattan, City of New York, is primarily used for the purpose of displaying scientific and ophthalmic instruments manufactured by it at Rochester, New York. All substantial orders for such products are transmitted to the executive office of the Com- pany at Rochester for approval and acceptance. No officer or director of Bausch & Lomb is connected with that office nor are any of the ordinary corporate activities of the Com- pany carried on there. These individual moving defendants perform no official functions in that office. The employees 55 57 58 59 60 20 Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. of the Company who make that office their headquarters are under the supervision of the heads of their respective departments at Rochester, with the exception of the small clerical staff which is under the control of Mr. Anthes. This office has no connection whatever with the portion of the Bausch & Lomb business involved in this action—the manufacture and sale of military optical instruments. In sum, the office is used chiefly to perform promotional func- tions for certain departments of the Bausch & Lomb busi- ness ; final and important decisions are all made at Rochester. It is submitted that this fragment of the Company’s opera- tion does not permit the conclusion that the Company is found in this District. So far as is known, no attempt was made by the Marshal of this Court to effect service on the defendant Bausch & Lomb Optical Company by serving Mr. Anthes or anyone else employed in the said office of Bausch & Lomb in the City of New York. This objection to the maintenance of this suit against these defendants in this Court is not a mere technical objection designed to delay or impede justice. For reasons stated later, this action is wholly without merit, and justice requires its final dismissal. But, in any event, it is essential that this action should not proceed in this Court if the venue is improperly laid here because personal participation in these proceedings in New York and further absence from their official duties in Rochester would seriously impede the services which these defendants are rendering to national defense. Prior to the outbreak of the European war in 1939, Bausch & Lomb was actively engaged in the manufacture of military optical instruments for the United States Army and Navy. Thereafter the demands by the United States 21 Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. Government on Bausch & Lomb for military optical equip- ment became steadily more heavy. Those demands are still increasing. Bausch & Lomb, its executives and employees have done and are doing everything in their power to meet the needs of the armed forces. As President of the Company my time and energies are spent largely in discharging the executive responsibilities in connection with the production of these products for national defense. The defendants Carl L. Bausch and Theodore B. Drescher, who are also officers of the Company, are directly charged with responsibility for various phases of production of instruments for national defense. Their whole time is required at Rochester for this purpose. Employees of Bausch & Lomb Optical Company familiar with the past history of transactions in military optical instruments are all located in Rochester, and are spending their full time there on the production of military optical instruments for the United States Government. Any interference with this work must be avoided. Proper regard for the requirements of military secrecy seem to me to prevent detailed presentation of the precise nature and im- portance of the work now being done by these defendants. However, I earnestly submit that time spent by them during the current emergency in preparing this case for trial, answering interrogatories or in appearing as witnesses would interfere seriously with matters of great importance to the defense program. While any proceedings requiring atten- tion of those concerned with production for defense would interfere with matters of importance to defense, proceedings requiring attendance at a distance from their place of busi- ness would be particularly disruptive. Accordingly even if there were not other grounds for dismissal, the action should 61 62 68 — 22 Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. be dismissed for improper venue against all these moving defendants. The joinder of Car] Zeiss, Inc., a New York corporation with its principal place of business within this District, cannot aid plaintiffs in attempting to lay the venue in this District. As will appear later, the agreements upon which plaintiffs purport to rely, copies of which are part of the records of this Court, show on their face that they were made not with Car] Zeiss, Inc. but with Carl Zeiss of Jena, Germany, not named as a defendant in this action and not within the jurisdiction. 64 65 Il. I have been advised by counsel and believe that on its face this complaint states no cause of action against these defendants and dismissal is sought on this ground. No useful purpose would be served by presenting any part of the legal argument here. I am advised by counsel and believe that the Statute under which this action purports to be brought was not aimed at nor does it cover even trans- actions of the character falsely and erroneously alleged in the complaint. III. 66 The Court should dismiss this complaint and grant sum- mary judgment in favor of these moving defendants under Rules 12 and 56 of the Federal Rules of Civil Procedure because no cause of action under the Statute invoked by plaintiffs exists in fact against these moving defendants. The complaint is made up largely of false and erroneous conclusions of law and of fact, many of them in direct con- Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. tradiction of facts which this Court may notice in the files of the Court. There is no genuine issue as to any material fact herein and the moving defendants are entitled to judg- ment as a matter of law. A. On March 26, 1940, the Anti-Trust Division of the Depart- ment of Justice procured the return of an indictment (C- 107—169) in this Court against these moving defendants for alleged violations of the Sherman Anti-Trust Act and the Wilson Tariff Act, and covering the same subject matter as is now covered by the complaint in this action. Refer- ence is made to the original indictment in the files of this Court for its scope and nature with the same force and effect as if fully set forth herein, but these defendants do not concede the correctness of all of the charges made in that indictment. The defendants originally pleaded not guilty to this indictment. On May 27, 1940, these defendants applied through counsel to Judge Goddard in open Court for leave to change their pleas of not guilty to pleas of nolo contendere. The Court was urged to permit this change of plea and to accept pleas of nolo contendere by counsel for these defen- dants and also by Hon. Samuel 8. Isseks, Special Assistant to the Attorney General, representing the Anti-Trust Divi- sion of the Department of Justice. As the stenographic transcript of the proceedings shows, counsel for these defendants stated to the Court on that occasion that the primary reason for this change of plea was to permit these defendants to proceed with their defense work for the Army and Navy without the interruption which would have been entailed in preparing for and participating in the trial of 67 69 70 71 72 24 Affidavit of M, Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. the criminal proceeding. In the course of the proceedings before Judge Goddard, Judge Goddard asked Mr. Isseks whether any charge of fraud on the part of these defendants was involved, and Mr. Isseks replied: “No, sir, there is no charge of fraud against the defendants in connection with the acts complained of in the indictment.” Judge Goddard accepted the pleas and, with the consent of these defendants, imposed fines totalling $40,000 upon them. This indictment was returned and disposed of after a thorough investigation by representatives of the Department of Justice, and the statement by Government counsel before Judge Goddard seems quite inconsistent with the charges of fraud made in this complaint. Following the entry of nolo pleas and by agreement be- tween counsel for these defendants and the Anti-Trust divi- sion, a consent decree was entered on July 9, 1940, in an equity suit (Civil Action No. 9-404) instituted in this Court on July 8, 1940, and covering the same matters charged in the indictment. Reference is made to the com- plaint in that action and to the consent decree entered therein with the same force and effect as if fully set forth herein, but the defendants do not concede the correctness of all of the allegations in the Government’s complaint. The present action was instituted by service of process by a Deputy Marshal of the Western District on these defen- dants at Rochester, New York, on December 26, 1941. This was approximately a year and a half after the entry of the consent decree just mentioned and after much publicity had been given to the proceedings of the Anti-Trust Division against Bausch & Lomb. The parallel between the dates men- tioned in the present complaint and in the complaint in the Government’s equity case indicates that this action was Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. not instituted without an examination of the files of this Court and a study of the papers on file in the Government’s proceedings. Yet, for reasons of their own, plaintiffs have seen fit to distort the earlier charges made by Government counsel and in important respects to make allegations which are directly contrary to statements made by those who were proceeding without hope of individual pecuniary benefit. Among these significant contradictions are the following, which furnish positive demonstration of the irresponsibility of plaintiffs’ fantastic charges: 1. Paragraph “Fifth” of the present complaint alleges that the individual defendants Eisenhart, Bausch and Dres- cher are officers and directors of Carl Zeiss, Inc., as well as of Bausch & Lomb. Both in the indictment and in the com- plaint in the equity action it is alleged specifically that these individual defendants have official connection only with Bausch & Lomb. No claim was made by the Government that they were officers or directors of Carl Zeiss, Inc. The fact is that none of these individual defendants has or has ever had any connection with Carl Zeiss, Inc. 2. Paragraphs “Eighth” and “Ninth” of the present com- plaint allege that the defendant Bausch & Lomb, on or about April 28, 1921, and the defendant Carl Zeiss, Inc., from on or about December 11, 1925 (together with the individual defendants alleged to be, but not in fact, officers or directors of Carl Zeiss, Inc.), entered into a conspiracy to defraud the United States Government, in effect, by hav- ing whichever corporate defendant made bids for the sale of military optical instruments to the United States Govern- ment add 20% to the amount of such bids and, if successful, 73 74 75 76 77 78 26 Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. pay such 20% to the other corporate defendant. Paragraph “Ninth” makes it clear that plaintiffs rely upon written agreements dated on or about April 28, 1921, June 27, 1925, October 28, 1925, November 26, 1926, and December 24, 1926. Copies of agreements bearing the same dates were annexed to the complaint in the Government’s equity suit in which the consent decree was entered, the dates of November 26, 1926 and December 24, 1926, applying to the same agree- ment. It is apparent, therefore, that this action is based on the same agreements which were alleged in the Government's equity suit. I respectfully ask that the copies of agreements annexed to the Government’s complaint be deemed incorpo- rated by reference herein, with the same force and effect as if fully set forth herein. I know of no other agreements bearing upon the subject matter. An examination of said agreements in the files of this Court shows that the allegations in the instant complaint with respect to them are false in the following material particulars: (a) None of these agreements was made between Bausch & Lomb Optical Company and the defendant Carl Zeiss, Inc. All were made with Carl Zeiss, of Jena, Germany. Indeed, the agreement of April 28, 1921, was made more than four years before the incorporation of the defendant Carl Zeiss, Inc. Carl Zeiss, Inc. had nothing to do with any of these agreements, nor has Bausch & Lomb had any dealings with Carl Zeiss, Inc. in connection with the sub- ject matter of these agreements. (b) Paragraphs “Eighth” and “Ninth” of the complaint allege in effect that the agreements referred to required Bausch & Lomb to add 20% to all bids which it made to the -—— Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. 27 United States Government on military optical instruments. No such provision or requirement is included in the agree- 79 ments. Yet the damages claimed in this case in astronomical amounts are predicated upon the existence of such a require- ment in the agreements and the exaction by Bausch & Lomb, pursuant to such a requirement, of 20% on all bids made by it to the United States Government, with the use by defendants of false and fraudulent documents to obtain payment from the United States. The 1925 amendment to the 1921 agreement was in terms revoked by the 1926 agree- ment, and, in any event, it had no possible relation to bids by Bausch & Lomb to the United States Government. Accordingly, it appears from the papers on file in this g0 Court in connection with the proceedings by the Government (the theoretical partial beneficiary of plaintiffs’ action) that the charges in this complaint are untrue in material particulars. The fundamental basis of this action, the Zeiss agreements, wholly fail to support the charges made. B. Not only are material allegations of the complaint shown to be false by reference to the records of this Court and the statements heretofore made, but the charges are utterly false in fact. There was not only no requirement in the agreement between Bausch & Lomb and Carl Zeiss, of Jena, that Bausch & Lomb should inflate its bids on military optical instruments to be supplied to the United States Government by 20%, or any other amount, to be paid to Carl Zeiss, of Jena, but there was no such inflation of bids. The price to be charged to the United States Government by Bausch & Lomb on military optical instruments manu- 81 82 84 28 Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. factured by it for the Government was decided upon by Bausch & Lomb alone without the participation or consent of any other organization. Bids made by Bausch & Lomb to the United States Government for such military optical in- struments did not include 20% or any other artificial sum to be paid by Bausch & Lomb to Carl Zeiss, Inc., as charged in the complaint. The only payments made by Bausch & Lomb were the royalty payments provided for in the agree- ments, and are not material here. These did not exceed 7%, and, in any event, were paid to Car] Zeiss, of Jena, and not to Carl Zeiss, Inc. No possible claim of fraud is or could be made in connection with such payments. In order to assist in the development of new and improved military optical instruments for the United States Govern- ment, sample instruments of foreign manufacture have occa- sionally been imported for examination and testing. Since Bausch & Lomb had manufacturing rights under designs and patents of Carl Zeiss, of Jena, for such equipment in the United States, the Army and Navy generally contracted with Bausch & Lomb for sample Zeiss military optical in- struments. In such cases, the prices quoted by Car] Zeiss, of Jena, to Bausch & Lomb were determined independently by Car] Zeiss, of Jena, and the contract prices between the Army and Navy and Bausch & Lomb were determined in- dependently by the latter, Bausch & Lomb assuming respon- sibility for the satisfactory character and performance of the instruments. Bausch & Lomb paid Carl Zeiss, of Jena, nothing beyond the net amount of its quotations for these instruments. On one occasion, in 1927, a contract was made between the United States Government and N. V. Neder- landsche Instrumenten Compagnie, of Venlo, Holland, a 29 Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. subsidiary of Carl Zeiss, of Jena, for the importation of a sample military optical instrument. The contract price included 5% which was paid to Bausch & Lomb, as exclu- sive American licensee under the patents of Carl Zeiss, of Jena, covering this instrument. It was understood that Bausch & Lomb would assist the United States authorities in straightening out whatever questions might arise regard- ing the design and performance of the instrument and would undertake the manufacture of such further instruments of similar character as might be desired by the United States Government. At no time was there any occasion when the 20% bid provision of the 1925 agreement—which, by its terms, was inapplicable to bids by Bausch & Lomb to the United States —was invoked in any transaction with the Government of the United States, to which Bausch & Lomb was in any way a party. The allegations in Paragraph “Eleventh” of the complaint are utterly false and untrue. The complaint alleges in the language of the Statute (Paragraph “Twelfth”) that at various undisclosed times the defendants presented for payment and approval to vari- ous officers of the Civil, Military and Naval Service of the United States, bids, claims, invoices, bills, vouchers, state- ments and accounts against the United States knowing that such documents were excessive, false, fictitious and fraudulent. I categorically deny those allegations. At no time did Bausch & Lomb, or anyone on its behalf, submit to any person or officer in the Civil, Military or Naval Ser- vice of the United States any claim upon or against the Government of the United States, or any department or office thereof, which was false, fictitious or fraudulent in any respect. I want to make it clear that the sweeping character ~ Affidavit of M. Herbert Eisenhart Read in Support of Order to Show Cause Dated January 6, 1942. 80 of this denial does not depend on the form of words of the charge or of this answer. Bausch & Lomb is proud of its record of assistance to the military authorities of the United States and of the trust which has been reposed in it by them. Reflections on its integrity in such dealings are utterly without foundation. The fact that for a period it had certain agreements with Carl Zeiss, of Jena, which resulted in great benefits in the improvement of military optical instruments supplied to the United States Govern- ment and which were subsequently attacked as violating the anti-trust laws, furnishes no support for the charges so reck- lessly made in this suit. 89 These moving defendants settled the charges of violation of the anti-trust laws in good faith so that they could pro- ceed with work necessary to national defense without inter- ruption. In the course of those proceedings, a Special Assistant to the Attorney General stated in open court, after full investigation, that no charge of fraud was involved. These defendants believed at the time of the settlement, and now believe, that upon a trial of the charges of violation of the anti-trust laws they had defenses available to them but they considered that it was their duty to proceed with their work for national defense rather than to seek personal vindication. These and other defenses peculiar to this action, 90 such as the statute of limitations, and others, are still avail- able to them and are reserved; but, regardless of the merits of the anti-trust proceeding, a matter which ought not now to be revived, it should require no formal trial of the issues to convince this Court that this action is utterly without merit or foundation in fact. In view of the facts and circum- stances set forth in this and in the accompanying affidavits, these defendants are advised and believe that this action is 31 Affidavit of M. Herbert Hisenhart Read in Support of Order to Show Cause Dated January 6, 1942. not maintainable, and they respectfully submit that they should not be required to interrupt their work for national defense to defend an action of this character. I respectfully ask that the annexed order to show cause be signed so that the time of these moving defendants to answer will be extended during the consideration of this motion and so that, if necessary, the time for the motion under Rule 56 may be shortened and that, upon the return of this motion, the motion be granted in all respects. (Sworn to by M. Herbert Eisenhart, January 5th, 1942.) 91 a AFFIDAVIT OF CARL L. BAUSCH ANNEXED TO ORDER TO SHOW CAUSE DATED JANUARY 6, 1942. UNITED STATES DISTRICT COURT 94 SOUTHERN DIstRIcT oF NEW YORK " > [SAME TITLE] La ss STATE OF NEW YORK, COUNTY OF MONROE, 88. : Car_ L. BauscH, being duly sworn, deposes and says: 95 1. I am one of the individual defendants named herein and am Vice-President in Charge of Engineering and Re- search and a director of the Defendant Bausch & Lomb Optical Company. 2. I ama resident and inhabitant of the City of Rochester, New York, residing on Parsons Lane, in that City. 3. Service of process in this action was made upon me in Rochester, New York, on December 26, 1941, by a Deputy United States Marshal of the United States District Court for the Western District of New York. 96 4. I have read the foregoing affidavit of M. Herbert Eisenhart, sworn to January 5, 1942, in support of this motion. The statements therein are true and I adopt them as my own and ask the Court to consider said affidavit as my own in support of this motion, without repeating again all of the matters therein set forth. (Sworn to by Carl L. Bausch, January 5th, 1942.) — AFFIDAVIT OF THEODORE B, DRESCHER ANNEXED TO ORDER TO SHOW CAUSE DATED JANUARY 6, 1942, UNITED STATES DISTRICT COURT SOUTHERN DIstTRICT OF NEw YorK 97 7 > [SAMB TITLB] ™ — STATE OF NEW YORK, COUNTY OF MONROE, 83. : THEODORE B. DreESCUER, being duly sworn, deposes and says: 98 1. I am one of the individual defendants named herein and am Vice-President in Charge of Manufacture and a director of the defendant Bausch & Lomb Optical Company. 2. Tama resident and inhabitant of the City of Rochester, New York, residing at 99 Pelham Road, in that City. 3. Service of process in this action was made upon me in Rochester, New York, on December 26, 1941, by a Deputy United States Marshal of the United States District Court for the Western District of New York. 99 4. I have read the foregoing affidavit of M. Herbert Eisenhart, sworn to January 5, 1942, in support of this motion. The statements therein are true and I adopt them as my own and ask the Court to consider said affidavit as my own in support of this motion, without repeating again all of the matters therein set forth. (Sworn to by Theodore B, Drescher, January 5th, 1942.) 100 101 102 — 34 AFFIDAVIT OF E. HERMAN ANTHES ANNEXED TO ORDER TO SHOW CAUSE DATED JANUARY 6, 1942. UNITED STATES DISTRICT COURT SOUTHERN DIstTRict oF NEW YoRK ”™ i [SAME TITLE] y - STATE OF NEW YORK, COUNTY OF NEW YORK, 838.: E. HERMAN ANTHES, being duly sworn, deposes and says: I am employed by Bausch & Lomb Optical Company, one of the defendants in this action. | reside at 2 Poplar Road, Larchmont, New York. Bausch & Lomb Optical Company (hereinafter sometimes called “Bausch & Lomb” for brevity ) is a large manufacturer of optical, ophthalmic and other prod- ucts. Its manufacturing plant is located in Rochester, New York, in the Western District of New York, and its execu- tive offices are located there. For several years I have been in charge of a small office conducted by Bausch & Lomb under its name at 30 Rockefeller Plaza, New York, N. Y. This assignment was due to the fact that I had been for some years directly connected with the Scientific Instru- ments Department of Bausch & Lomb at Rochester, New York. The lease for this office was executed by Bausch & Lomb at its executive offices in Rochester, New York. The rent for the office is paid by Bausch & Lomb at Rochester, New York. Among the products manufactured by Bausch & Lomb are scientific instruments (including balopticons, micro- projectors, microscopes, binoculars, magnifying glasses, etc. ) — 85 Affidavit of E. Herman Anthes Read in Support of Order to Show Cause Dated January 6, 1942. and ophthalmic products and instruments (including perim- eters, binocular ophthalmoscopes, light sense testers and other equipment for the examination of the eye). The office at 30 Rockefeller Plaza provides an operations base for the promotional and soliciting activities engaged in by the staff, but it is essentially a display room for the various products manufactured by Bausch & Lomb, some of which are enumer- ated above. Price lists and other literature of Bausch & Lomb make it clear that orders are not valid until accepted at the offices of the Company at Rochester, New York. When educational or scientific institutions, or dealers, or other prospective purchasers of scientific instruments desire to order such instruments from Bausch & Lomb the orders 104 therefor are transmitted by me to Bausch & Lomb at Rochester, New York, for acceptance. In each year in the months of August and September, perhaps twelve or fifteen microscopes are, as a special favor, sold to resident medical students, and from time to time binoculars, magnifying glasses and other incidental scientific instruments may be sold to individuals out of the small inventory which is maintained at the office solely as a matter of accommodation for such individual customers. The office staff, including myself, consists of sixteen em- ployees of whom five constitute a clerical force under my immediate supervision. The clerical workers are paid out 105 of a local bank account, which is also used for other petty cash disbursements. The average balance in this account is $2,000 or $3,000. The other employees whose base of opera- tions is this office are paid by Bausch & Lomb from Rochester, and as to these employees I have no authority to hire or discharge. Excluding two employees whose function it is to demonstrate the display equipment maintained in the 103 106 107 108 Affidavit of E. Herman Anthes Read in Support of Order to Show Cause Dated January 6, 1942. showrooms, five of the staff are concerned with the scientific instruments field. Their duties consist of promoting the use of Bausch & Lomb instruments, servicing instruments in use and general promotion activities with respect to scientific instruments. All substantial orders received in the course of their activities are forwarded to Bausch & Lomb for acceptance. Two other employees who make their headquarters in this office are concerned with ophthalmic products and instru- ments and the annexed affidavit of Mr. Craytor sets forth their activities. It appears therefrom that except for occa- sional sales from the small inventory maintained in the office as an accommodation, their branch of the office like- wise exists largely for promotional and informational pur- poses. Neither I nor any of the other employees of Bausch & Lomb at this office is an officer or director of Bausch & Lomb Optical Company. No directors’ or stockholders’ meetings of Bausch & Lomb are held at this office and all other normal corporate activities of Bausch & Lomb are carried on at its office in Rochester, New York. Neither I nor any of the other employees have any general adminis- trative or discretionary supervision over the general business of Bausch & Lomb, nor is any general business of that Com- pany transacted from such office. Several years ago, to facilitate sales to the Department of Public Education in the City of New York, I was given a power of attorney authorizing me to sign bids and contracts and to accept pay- ments therefor. However, the regular procedure is for such contracts to be finally passed on at the office of the Company at Rochester, New York. (Sworn to by E. Herman Anthes, January 5th, 1942.) a AFFIDAVIT OF RUSSELL E. CRAYTOR ANNEXED TO ORDER TO SHOW CAUSE DATED JANUARY 6, 1942. 37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF New YorK 109 — ([SAMB TITLE] > > a STATP OF NEW YORK, COUNTY OF NEW YORK, 88.: RUSSELL E, Craytor, being duly sworn, deposes and says: I am employed by Bausch & Lomb Optical Company of Rochester, New York. I reside at 167-10 Crocheron Avenue, 110 Flushing, New York. I make my headquarters at the office at 30 Rockefeller Plaza, New York, N. Y., described in the annexed affidavit of Herman Anthes, but I am not under his supervision. I am directly responsible to Ben A. Ramaker, Sales Manager of Bausch & Lomb Optical Company, whose office is at Rochester, New York. My duties consist of visiting whole- sale and retail users or prospective users of Bausch & Lomb ophthalmic products to promote the further use of such products. I travel extensively in the State of New York and in other nearby states in connection with these activities. One of the Bausch & Lomb employees who also makes his 111 headquarters at the office at 30 Rockefeller Plaza is engaged in activities similar to mine. From time to time, retailers give me orders for ophthalmic products, but no such orders are executed by me or at said office. In the case of all retail orders, the retail source of the order indicates to me What wholesaler to have the order placed through and the ~—7 Affidavit of Russell E. Craytor Read in Support of Order to Show Cause Dated January 6, 1942. 38 order is then placed through such wholesaler. On occasion, when the retail order is of such a character that it is not carried in wholesale stock and must be procured from the Bausch & Lomb factory, this same procedure of placing the order through the wholesaler is followed. I seldom have occasion to take direct orders from wholesalers, but on those occasions when I do take such orders, they are transmitted to Bausch & Lomb at Rochester for acceptance and execu- tion. A small amount of representative ophthalmic equip- ment and instruments is maintained at the office at 30 Rockefeller Plaza. This is kept there for purposes of display and it is only on relatively infrequent occasions that parts 113 for and individual ophthalinic instruments may be sold directly from this small supply to individual customers, although such sales are made from time to time. 112 (Sworn to by Russell E. Craytor, January 5th, 1942.) 39 Notice of Motion. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YoRK ”™ —_ [SA4MP TITLD] ys > SIR: PLEASE TAKE NOTICE that on the summons and complaint and upon the Marshal’s returns herein, all filed in this Court, and upon the annexed affidavit of Karl A. Bauer, sworn to the 6th day of January, 1942, a motion will be made at a Stated Term for the hearing of Motions to be held at Room 506 of the United States Court House, Foley Square, in the Borough of Manhattan, City, County and State of New York, on the 16th day of January, 1942, at 10:30 o'clock in the forenoon of that day, or as soon there- after as counsel can be heard, for an order (a) under Rule 12 of the Rules of Civil Procedure dismissing this ac- tion and the complaint herein as against the defendant, Carl Zeiss, Inc., on the ground that the complaint fails to state a cause of action against this defendant upon which relief can be granted, and (b) granting summary judgment under Rule 56 of the Rules of Civil Procedure on the ground that the complaint and affidavits herein show that there is no genuine issue as to any material fact therein, and that the defendant is entitled to judgment as a matter of law, and for such other and further relief as may be just and proper, together with the costs of this motion. 115 116 117 ; eg Notice of Motion. Dated, New York, N. Y., January 6, 1942. Yours, etc. 1 1 8 ? ’ JOSHUA D. JONES, of GirrorD, Woopy, CARTER & Hays, Attorneys for Defendant, Carl Zeiss, Inc., Office & P. O. Address, One Wall Street, Borough of Manhattan, New York, N. Y. To: 119 EMANUEL THEBNER, Esq., Attorney for Plaintiffs, 111 John Street, New York, N. Y. 41 Affidavit of Karl A. Bauer Read in Support of Motion. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YorRK > [SAME TITLE] > > STATE OF NEW YORK, COUNTY OF NEW YORK, 88.: Kaki A. BAvER, being duly sworn, deposes and says: I am president of the defendant, Carl Zeiss, Inc., and submit this affidavit in support of a motion made on behalf of said defendant, Car] Zeiss, Inc., to dismiss the complaint herein and for a summary judgment in favor of the said defendant upon the grounds set forth in the notice of motion herein. I have been advised by counsel and believe that on its face the complaint states no cause of action against the de- fendant, Car] Zeiss, Inc., as the statute under which this ac- tion purports to be brought does not cover or apply to trans- actions of the character falsely and erroneously alleged in the complaint. The complaint should be dismissed and summary judg- ment granted in favor of the defendant, Carl Zeiss, Inc., under Rules 12 and 56 of the Rules of Civil Procedure be- cause the complaint is made up largely of false and errone- ous conclusions of law and fact, practically all of which are directly contrary to facts which this Court may take cognizance of as they are in the files of this court. On March 26, 1940, the Anti-Trust Division of the De- partment of Justice procured the return of an indictment 121 122 123 we eaten o 124 125 126 42 Affidavit of Karl A. Bauer Read in Support of Motion. (File C-107-109) in this court against the defendants in this action, including the defendant, Carl Zeiss, Inc., for al- leged violations of the Sherman Anti-Trust Act and covering the same subject matter as is now covered by the complaint in this action. Reference is made to the original indict- ment in the files in this court for its scope and nature with the same force and effect as if fully set forth herein, al- though deponent does not concede the correctness of the charges therein against the defendant, Carl Zeiss, Inc. The defendant, Carl Zeiss, Inc., originally pleaded not guilty to the indictment. On March 5, 1941, this defendant applied, through counsel, to Judge Libell in open court for leave to change its plea of not guilty to a plea of nolo contendere. This application was consented to by the Hon- orable Samuel 8S. Isseks, Special Assistant to the Attorney General, representing the Anti-Trust Division of the De- partment of Justice. Judge Libell accepted the plea and fined the defendant, Carl Zeiss, Inc., the sum of $1,000. Paragraph “Fifth” of the complaint alleges that the de- fendants, M. H. Eisenhart, Car] L. Bausch and Theodore B. Drescher, are officers and directors of Carl Zeiss, Inc. This is not the fact. Neither of these three men were ever at any time officers, directors or employees of Carl Zeiss, Inc. and were never at any time connected with the defen- dant, Carl Zeiss, Inc. in any capacity whatever. Paragraph “Sixth” of the complaint alleges that Carl Zeiss, Inc. is engaged in selling periscopes, range finders, altimeters, boresights, bombsights, torpedo directors, sights for guns and other scientific optical instruments (except binoculars) used to direct and contro] the firing of modern instruments of warfare, referred to as “military optical in- struments”. This is not a fact. Carl Zeiss, Inc. was in- corporated in 1925 and never at any time in the history of T , Affidavit of Karl A. Bauer Read in Support of Motion. its existence did it deal or was it concerned with the sale of any such instruments as are listed or any other instru- ment of any sort that would answer the description of mili- tary optical instruments. Its business is altogether con- fined to the sale of cameras, telescopes, microscopes and optical instruments as used in civil businesses. It never at any time carried any such instruments. The only charge against the defendant, Carl Zeiss, Inc., made by the gov- ernment in the Anti-Trust suit was that the defendant, Carl Zeiss, Inc., had declined from importing, selling or dealing in such instruments because of certain agreements made between Carl Zeiss, Jena, and Bausch & Lomb Optical Company. Paragraphs “Eighth” and “Ninth” make it clear that 128 plaintiffs rely upon certain written agreements dated on or about April 28, 1921, June 27, 1925, September 28, 1925, November 26, 1926 and December 24, 1926. Copies of these agreements were examined by me at the time of the filing of the indictment against the defendant, Car) Zeiss, Inc., and they were all made between Bausch & Lomb Optical Com- pany and Carl Zeiss, Jena. The agreement of April 28, 1921, upon which plaintiffs particularly rely, was made four years before Carl Zeiss, Inc. was incorporated. Carl Zeiss, Inc. never at any time had anything to do with any of these agreements, nor has Carl Zeiss, Inc. had at any time any dealings with Bausch & Lomb Optical Company in connection with the subject matter of these agreements. Since the entry of the plea of nolo contendere on March 5, 1941, neither the defendant, Carl Zeiss, Inc., nor any officer in connection with it has ever been approached by the Government of the United States in connection with the sale of military optical instruments by Bausch & Lomb Optical Company or any other concern in the United States 127 129 130 131 132 44 Affidavit of Karl A. Bauer Read in Support of Motion. dealing with such instruments. No consent decree or other arrangements have been made by the defendant, Carl Zeiss, Inc., with the government or any official on its behalf with respect to the dealings in such instruments. Deponent is in- formed and believes that the agreements under which the indictment of the Sherman Anti-Trust Act was brought are in the possession of Bausch & Lomb Optical Company or Carl Zeiss, Jena, and that copies are on file in the proceed- ings brought by the United States Government against Bausch & Lomb Optical Company and that these can be furnished to the court by the attorneys representing the other defendants on the hearing of this motion. An examination of the agreements will disclose that no such provisions are contained in the agreement as they are alleged in paragraphs “Eighth” and “Ninth” of the complaint. Accordingly it appears from the papers on file in this court that the charges in this complaint are untrue in ma- terial particulars. The fundamental basis of the action that Carl Zeiss, Inc. was a party to the agreement or dealt in the material covered by the complaint wholly fails to support the charges made. The absurdity of making Carl Zeiss, Inc. a party to this action is apparent from an examination of paragraph “Tenth”, which alleges that between April 28, 1921 and March 29, 1940, the defendants received payments from the United States for the sale and delivery of such military op- tical instruments, when in truth and fact the defendant, Carl Zeiss, Inc., never sold or delivered a military optical instrument to any person in the United States of America, including the United States Government. The same fact applies to paragraphs “Eleventh”, “Twelfth”, “Thirteenth”, “Fourteenth” and “Fifteenth” as the defendant, Carl Zeiss, 45 Affidavit of Karl A. Bauer Read in Support of Motion. Inc., never at any time bid for any government contract for the importation into the United States of any military optical instrument or its sale, manufacture and delivery in the United States. Deponent respectfully submits that this action should be dismissed as to the defendant, Carl Zeiss, Inc. (Sworn to by Kar] A. Bauer, January 6th, 1942.) 133 136 137 138 46 Order to Show Cause Dated January 14, 1942. UNITED STATES DISTRICT COURT SOUTHERN District oF NEw YORK File No. Civ. 17-11 -™ a [SAME TITLE] ” > Upon the summons and complaint and Marshal’s returns herein and upon the order to show cause, dated January 6, 1942, signed by Honorable Alfred C. Coxe, and the affidavits annexed thereto, and upon the annexed affidavit of Whitney North Seymour, sworn to the 14th day of January, 1942, and the purported amended complaint, Let the plaintiffs herein and each of them show cause before this Court, at a Stated Term thereof to be held in Room 506, in the United States Court House, Foley Square, Borough of Manhattan, City, County and State of New York, on the 16th day of January, 1942, at 10:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, why an order should not be entered herein 1. As an additional ground for relief in connection with the motion made returnable by said order to show cause dated January 6, 1942, striking as sham and false the complaint in this action pursuant to the provisions of Rule 11 of the Federal Rules of Civil Procedure and directing the institution of appropriate disciplinary action against the plaintiffs herein for wilful violation of said Rule. 2. (a) Determining that the purported amended com- plaint of the plaintiffs herein, of which a copy was de- — said 47 Order to Show Cause Dated January 14, 1942. livered to the attorneys for the defendants Bausch & Lomb Optical Company, M. H. Eisenhart, Carl L. Bausch and Theodore B. Drescher on January 13, 1942, is a nullity. (b) Denying leave to the plaintiffs herein to amend their complaint in accordance with said purported amended complaint. or in the event that said motion designated 2(a) and (b) be denied, and the complaint is amended in accordance with purported amended complaint, 3. (a) Dismissing this action and the amended com- plaint herein as against the defendants Bausch & Lomb Optical Company, M. H. Eisenhart, Carl L. Bausch and Theodore B. Drescher on the ground that the venue of this action as to the said defendants has been improp- erly laid in the Southern District of New York. (b) Dismissing this action and the amended com- plaint herein as against the said defendants on the ground that the amended complaint fails to state a claim against these defendants upon which relief can be granted. (c) Granting summary judgment to these defen- dants upon the ground that the complaint and amended complaint, the affidavits annexed to said order to show cause dated January 6, 1942, and the affidavit hereto annexed show that there is no genuine issue as to any material fact herein and that these defendants are entitled to judgment as against the plaintiffs as a matter of law, 139 140 141 142 148 48 Order to Show Cause Dated January 14, 1942. and for such other and further relief as to this Court may seem just and proper, together with the costs of this action. Sufficient cause appearing therefor, it is ORDERED that the plaintiffs be and they hereby are stayed from taking any further proceedings in this action until final decision upon this motion and the motion made return- able by said order to show cause, dated January 6, 1942; and it is further ORDERED that service of a copy of this order and the affi- davit annexed thereto at the office of Emanuel Thebner, attorney for the plaintiffs, 111 John Street, Borough of Man- hattan, City, County and State of New York, on or before 9:00 P. M. on January 14th, 1942, be deemed sufficient service hereof. Dated, New York, N. Y., January 14th, 1942. ALFRED C. COXE, United States District Judge. _7—V—“" 49 AFFIDAVIT OF WHITNEY NORTH SEYMOUR AN- NEXED TO ORDER TO SHOW CAUSE DATED JANUARY 14, 1942. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 145 — [SAME TITLE] ™ > STATE OF NEW YORK, COUNTY OF NEW YORK, 88.: WHITNEY NorTH SEYMovwR, being duly sworn, deposes and _* 146 I am an attorney and counsellor-at-law and a member of the firm of Simpson Thacher & Bartlett, attorneys for defen- dants Bausch & Lomb Optical Company, M. H. Eisenhart, Carl L. Bausch and Theodore B. Drescher in this action. This affidavit is submitted in support of a motion for the relief set forth in the annexed order to show cause by which this motion is made returnable. On December 26, 1941, copies of the summons and com- plaint in this action were served upon the defendants Bausch & Lomb Optical Company (hereinafter sometimes called “Bausch & Lomb” for brevity), M. H. Eisenhart, Carl L. Bausch and Theodore B. Drescher, at Rochester, New York. On January 6, 1942, an order to show cause was signed by Honorable Alfred C. Coxe bringing on a motion on behalf of these defendants to dismiss the complaint for improper venue, failure to state a cause of action and also for sum- mary judgment in favor of the defendants. The motion was made returnable by said order to show cause on January 147 , 7] Affidavit of Whitney North Seymour Read in Support of Order to Show Cause Dated January 14, 1942. 16, 1942. I respectfully refer to said order to show cause and the affidavits annexed thereto with the same force and effect as if they were fully set forth herein. At 5:30 P. M. on January 13, 1942, a representative of the office of Mr. Emanuel Thebner, attorney for the plain- tiffs, delivered to the office of my said firm a copy of a paper purporting to be an amended complaint in this action. A copy of said purported amended complaint is annexed hereto, and, without conceding the correctness of any of the statements made therein, I respectfully ask that it be considered upon this motion and upon the motions brought on by the earlier order to show cause as an admission by 149 ~«Othe *~piaintiffs and for all purposes except as an amended complaint. As promptly as possible said purported amended complaint will be returned to the office of the attorney for the plaintiff with a notice, copy of which is annexed hereto, stating that said document is a nullity and does not comply with Rule 15(a) of the Federal Rules of Civil Procedure. Plaintiffs apparently now recognize, as was demonstrated by the affidavits in support of the motion brought on by the said order to show cause, dated January 6, 1942, that the complaint in this action is false in materia] particulars and that the defendants’ motion addressed to it must be granted. In an effort to avoid decision on that motion, plain- 150. «(tiffs have served a purported amended complaint, without obtaining leave of the Court. Said purported amended com- plaint was not properly served as an amendment of the complaint as of course under Rule 15(a) because it was served after the service of defendants’ motion to dismiss 148 and for summary judgment. Accordingly, plaintiffs have wholly failed to comply with the requirements of Rule 15(a) 51 Affidavit of Whitney North Seymour Read in Support of Order to Show Cause Dated January 14, 1942. and the purported amended complaint is a nullity and defen- dants are entitled to a decision to that effect. Since no amendment of the complaint has been made or authorized, defendants’ original motion to dismiss and for summary judgment will be heard on the return of the order to show cause dated January 6, 1942. It is of extreme im- portance to the defendants that this action should be finally disposed of as promptly as possible without further harass- ment or annoyance to them. It is clear from the annexed form of purported amended complaint that the original complaint in this action is false in material particulars and that the signing of that com- plaint by the attorney for the plaintiffs under the cireum- stances is a direct violation of Rule 11 of the Federal Rules of Civil Procedure. The flagrant violation of that Rule by the plaintiffs herein, both of whom are members of the Bar of this Court, requires that the complaint should be stricken as sham and false under the Rule and that appropriate dis- ciplinary proceedings should be instituted against the plain- tiffs. The plaintiffs should not be allowed to avoid the inevitable dismissal of the complaint by any proceedings on their part seeking to delay disposition of the motion to dismiss and for summary judgment. The language of the purported amended complaint varies the cause of action so completely and it so plainly fails to state a cause of action against these defendants that even if an application for leave to amend were made, it must necessarily be denied. Accord- ingly, by this motion defendants seek not only a determina- tion that the purported amended complaint is a nullity but also relief against any dilatory attempt on the part of the plaintiffs to avoid final adverse disposition of this litigation. 151 152 153 154 155 156 52 Affidavit of Whitney North Seymour Read in Support of Order to Show Cause Dated January 14, 1942. Even if the complaint were to be deemed amended (which for the reasons stated would be improper), it is clear that it would have to be dismissed and summary judgment granted to defendants upon the grounds set forth in the order to show cause annexed hereto. Accordingly, that relief is sought in the alternative, but only in the event that grounds 2(a) and (b) of this motion are denied. This motion should be made returnable concurrently with the motion brought on by said order to show cause dated January 6, 1942, so that final disposition of the litigation may be had. Convenience of the Court indicates that both motions should be considered together, since the papers on both motions must be examined on each. In view of the fact that the purported amended complaint was only served upon my firm on January 13, 1942, it is impossible to give the ordinary notice of motion and still have this motion returnable concurrently with the motions brought on by said order to show cause dated January 6, 1942. Accordingly, I respectfully request that the annexed order to show cause be signed, so that said motions may be heard and determined together on the return day of the original order to show cause herein. I also request that such order to show cause contain a stay of further proceedings on the part of the plaintiffs pending the return of this motion, so that no further steps may be taken on their part to avoid final decision in the litigation. The moving defendants do not waive their objections to the bringing of this action in this District. On the contrary they insist upon that objection and this motion is made to prevent evasion by plaintiffs of prompt decision of that question and the other questions presented by this motion made returnable by the order to show cause dated January 6, 1942. Ground 1 of the present 53 Affidavit of Whitney North Seymour Read in Support of Order to Show Cause Dated January 14, 1942. motion is an additional ground for dismissal which the Court is asked to consider in connection with the defendants’ earlier motion. The violation of Rule 11 by plaintiffs, to which attention is called by that ground, has now become so apparent that it ought not to be overlooked by the Court. No previous application has been made for the relief sought herein. WHEREFORD I respectfully request that an order to show cause in the form annexed hereto be signed and that this motion be granted so far as may be appropriate. (Sworn to by Whitney North Seymour, January 14th, 1942. ) AMENDED COMPLAINT ANNEXED TO ORDER TO SHOW CAUSE DATED JANUARY 14th, 1942 HAS BEEN PRINTED HEREIN AT PAGE 73. 157 158 159 : i Notice of Rejection. UNITED STATES DISTRICT COURT SOUTHERN District OF NEw YORK 160 si — [SAMB TITLE] > — SIR: PLEASE TAKE NOTICE that the undersigned hereby return and reject as a nullity the annexed purported amended com- plaint in this action because said purported amended com- plaint and the service thereof do not comply with Rule 15(a) of the Federal Rules of Civil Procedure in that said pur- ported amended complaint was not served before a respon- 161 sive pleading to the complaint was served and neither leave of the Court nor written consent of the adverse party was obtained, and upon the further ground that said purported amended complaint fails to comply with the requirements of the Federal Rules of Civil Procedure in any respect. Dated, New York, N. Y., January 14, 1942. Yours, etc., SIMPSON THACHER & BARTLETT, Attorneys for Defendants, Bausch & Lomb Optical Company, M. H. Eisenhart, Carl L. Bausch and 162 Theodore B. Drescher, Office and Post Office Address, 120 Broadway, Borough of Manhattan, New York, N. Y. To: EMANUEL THEBNER, EsqQ., Attorney for Plaintiffs, 111 John Street, New York, N. Y. T : Affidavit of Service of Jack Kemp Busby. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEw YORK File No. Civ. 17-11 163 (SAME TITLE] STATE OF NEW YORK, COUNTY OF NEW YORK, 838. : JACK Kemp Bussy, being duly sworn, deposes and says: I am an attorney and counsellor at law associated with the firm of Simpson Thacher & Bartlett, attorneys for the 104 defendants Bausch & Lomb Optical Company, M. H. Eisen- hart, Carl L. Bausch and Theodore B. Drescher in this action; that I am over the age of twenty-one years and re- side at The Hampshire House, 150 Central Park South, in the Borough of Manhattan, City, County and State of New York, and that I am not a party to this action; that on the 14th day of January, 1942, at or about 1:20 o’clock in the afternoon of that day, I served personally upon Emanuel Thebner, attorney for plaintiffs in this action, at his office at No. 111 John Street, in the Borough of Manhattan, City, County and State of New York, an original Notice of Re- jection, of which a true copy is hereto annexed, to which was attached a copy of a purported amended complaint 165 of the plaintiffs in this action, said copy being the same paper which was delivered by a representative of the office of Mr. Emanuel Thebner at the office of Messrs. Simpson Thacher & Bartlett at or about 5:30 P. M. on January 13, 1942, by personally giving to and leaving with the said Emanuel Thebner the aforesaid original Notice of Rejec- 166 167 168 56 Affidavit of Service of Jack Kemp Busby. tion herein with the aforesaid copy of purported amended complaint annexed thereto. Deponent further says that at the same time and place as aforesaid he served personally upon said Emanuel Thebner the order to show cause of Hon. Alfred C. Coxe herein, dated January 14, 1942, to which was annexed the affidavit of Whitney North Seymour, verified January 14, 1942, a true copy of the aforesaid purported amended complaint and of the aforesaid Notice of Rejection, by personally exhibiting to the said Emanuel Thebner the aforesaid order to show cause, affidavit of Whitney North Seymour, copy of pur- ported amended complaint and copy of Notice of Rejection, and personally leaving with the said Emanuel Thebner true copies thereof. (Sworn to by Jack Kemp Busby, January 14th, 1942.) oa — Order to Show Cause Dated January 14, 1942. 57 UNITED STATES DISTRICT COURT SOUTHERN District or New YorkK 169 UNITED STATES OF AMERICA on the relation of MuRRAY BREN- SILBER and EMANUEL THEBNER, and MURRAY BRENSILBER and EMANUEL THEBNER, in their own behalf, Plaintiffs, —against— BauscH & Loms OpticaL CoMPANy, CarL ZEIss INc., M. H. EISENHART, CARL L. BAuscH and THEoporE B. DRescHEr, 170 Defendants. -s a On the summons and complaint herein and upon the Mar- shal’s returns herein, the notice of motion herein made by the defendant, Carl Zeiss, Inc., dated January 6, 1942, re- turnable the 16th day of January, 1942, for an order under 171 172 173 174 58 Order to Show Cause Dated January 14, 1942. Rule 12 of the Rules of Civil Procedure dismissing the ac- tion and the complaint herein as to the said defendant, Carl Zeiss, Inc., on the ground that the complaint fails to state a cause of action and granting summary judgment under Rule 56 of the Rules of Civil Procedure, and upon the annexed affidavit of Joshua D. Jones, verified the 14th day of January, 1942, and the purported amended complaint herein ; Let the plaintiffs herein and each of them show cause be- fore this Court at a Stated Term for the hearing of motions to be held in Room 506 of the United States Court House, Foley Square, in the Borough of Manhattan, City, County and State of New York, on the 16th day of January, 1942, at 10:30 o’clock in the forenoon of that day or as soon there- after as counsel can be heard, why an order should not be entered herein granting to the defendant, Carl Zeiss, Inc., the relief prayed for in the said notice of motion herein, dated January 6, 1942, and as an additional ground for relief in connection with said motion, (a) Striking out as sham and false the purported amend- ed complaint and directing the institution of appropriate disciplinary proceedings of the plaintiffs herein for wilful violation of the Rules of Civil Procedure of this Court, and (b) Directing the proposed amended complaint of the plaintiffs herein, of which a copy was delivered to the at- torneys for the defendant, Car] Zeiss, Inc., on January 13, 1942, is a nullity, and (c) Denying leave to the plaintiffs herein to amend the complaint in accordance with the said purported amended complaint, and 59 Order to Show Cause Dated January 14, 1942. (d) In the event that the said motion be denied and that the plaintiffs’ complaint be amended in accordance with the proposed amended complaint, 1. Dismissing the amended complaint herein under Rule 12 of the Rules of Civil Procedure on the ground that the said amended complaint fails to state a cause of action against the defendant, Car] Zeiss, Inc., and 2. Granting summary judgment under Rule 56 of the Rules of Civil Procedure on the ground that the said amend- ed complaint shows that there is no genuiue issue as to any material fact therein and that the defendant, Carl Zeiss, Inc., is entitled to judgment as a matter of law, and for such other and further relief as may be just and proper, to- gether with the costs of this motion, and suflicient cause ap- pearing therefor, it is 176 ORDERED that the time of the defendant, Carl Zeiss, Inc., to answer the complaint or amended complaint herein be and the same hereby is extended to and including ten days after the entry of an order disposing of this motion; and it is further ORDERED that service of a copy of this order and the affi- davit annexed, at the office of Emanuel Thebner, attorney for the plaintiffs, 111 John Street, Borough of Manhattan, 177 City, County and State of New York, on or before 6:00 P.M. January 14, 1942, be deemed sufficient service hereof. Dated, New York, N. Y., January 14, 1942. ALFRED C. COXE, United States District Judge. lbs 178 179 180 : | AFFIDAVIT OF JOSHUA D. JONES ANNEXED TO ORDER TO SHOW CAUSE DATED JANUARY 14, 1942. UNITED STATES DISTRICT COURT SOUTHERN District oF NEW YORK [aan wer] = ~~} STATE OF NEW YORK, CouUNTY OF NEW YORK, 838.: JosHUA D. JONES, being duly sworn, deposes and says: I am an attorney associated with Gifford, Woody, Carter & Hays, the attorneys for the defendant, Car] Zeiss, Inc., and I have personal charge of this action. This action was com- menced against the defendant, Carl Zeiss, Inc., by the filing of the summons with the Clerk of this Court on December 17, 1941, and the service of a summons and complaint on the defendant, Carl Zeiss, Inc., on December 31, 1941. Thereafter on January 7, 1942, I prepared and caused a notice of motion to be served on Emanuel Thebner, Esq., the attorney for the plaintiffs, dated January 6, 1942, return- able before this Court on January 16, 1942, asking for an order dismissing the complaint herein on the ground that it did not state a cause of action against the defendant, Carl Zeiss, Inc., and asking for summary judgment in favor of the defendant, Carl Zeiss, Inc., under Rule 56 of the Rules of Civil Procedure on the ground that there was no genuine issue or any material fact in dispute. To this notice of motion was attached the affidavit of Karl A. Bauer, president of Carl Zeiss, Inc., verified January 6, 1942, in which it was stated that the material allegations a : Affidavit of Joshua D. Jones Read in Support of Order to Show Cause Dated January 14, 1942. of the complaint to the effect that the individual defendants were officers of Car] Zeiss, Inc.; that Carl Zeiss, Inc. had entered into a conspiracy with Bausch & Lomb Optical Com- pany to charge the United States Government excessive prices on the sale of military optical instruments and had collected excessive prices for such materials and filed bills, vouchers and invoices which were false and fictitious, which allegations were absolutely false, and that Carl Zeiss, Inc. never at any time manufactured, sold, delivered or dealt in military optical instruments of any kind and that they had never at any time sold or did business with the United States Government in such instruments, and that this was disclosed in a proceeding brought by the United States 495 Government in this Court against Bausch & Lomb Optical Company and the defendant, Carl Zeiss, Inc., for violation of the Sherman Anti-Trust Act. The original notice of motion, dated January 6, 1942, and returnable January 16, 1942, with the affidavit of Karl A. Bauer attached thereto was duly filed with the Clerk of this Court for the hearing of the motion on the 16th. Yesterday, shortly after 5:00 o’clock, there wag left at the office of Gifford, Woody, Carter & Hays, what pur- ports to be an amended complaint, undated and unverified, correcting the statements contained in the original com- 183 plaint, the falseness of which had been sworn to in the affi- davit of Kar] A. Bauer, annexed to the notice of motion. The plaintiffs have failed to serve any opposing affidavits in opposition to defendant’s motion for summary judgment and have served what purports to be an amended com- plaint, the allegations of which in all respects establish the truth of the statements made in the affidavit of Karl A. 181 Affidavit of Joshua D. Jones Read in Support of Order to Show Cause Dated January 14, 1942. Bauer that the allegations of the original complaint are 184 false. The purported amended complaint does not correct the defects in the original complaint, for which it is claimed that it should be dismissed on the ground that it does not state a cause of action. In addition to that, it conclusively establishes that there is no issue to be determined in this action and that summary judgment should be granted in favor of the defendant, Carl Zeiss, Inc., as asked for in the notice of motion, dated January 6, 1942. Deponent respectfully submits that there is no procedure under Rule 15 of the Rules of Civil Procedure under which 185 4a plaintiff can serve an amended complaint in answer to a motion for summary judgment; and further, that under Rule 11 of the Rules of Civil Procedure, the attorney for the plaintiff is subject to appropriate disciplinary action for filing pleadings obviously containing matter which he knows not to be correct and at least would never have been alleged if there had been a casual examination of the papers on file in this Court which formed the basis of the action against the defendant, Carl Zeiss, Inc. Attached hereto and marked Exhibit “A” is a copy of the proposed amended complaint received on January 13, 1942. No previous application for similar relief has been made. 186 WHEREFORE it is respectfully requested that an order to shew cause in the form annexed hereto be signed bringing this motion for a hearing on January 16, 1942 at the same time and place as the motion, dated January 6, 1942, is re- turnable, and further extending the time of the defendant, Carl Zeiss, Inc., to answer the complaint or the proposed > Affidavit of Joshua D. Jones Read in Support of Order to Show Cause Dated January 14, 1942. 63 amended complaint herein until ten days after an order up- on said motion; and further ordered that service of a copy of this order and the affidavit and exhibit annexed thereto at the office of Emanuel Thebner, Esq., the attorney for the plaintiffs, 111 John Street, Borough of Manhattan, City, County and State of New York, on or before 6:00 o’clock on January 14, 1942, shall be deemed sufficient service thereof. 187 (Sworn to by Joshua D. Jones, January 14th, 1942.) AMENDED COMPLAINT ANNEXED TO ORDER TO SHOW CAUSE DATED JANUARY 14TH, 1942 HAS 188 BEEN PRINTED HEREIN AT PAGE SIMILAR NOTICE OF REJECTION, DATED JAN- UARY 14, 1942, HAS BEEN PRINTED HEREIN AT PAGE 54. 189 oe 64 Opposing Affidavit of Emanuel Thebner. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 190 , a [SAMB TITLE] ”™ ~~ STATE OF NEW YORK, COUNTY OF NEW YORK, 88.: EMANUEL THEBNER, being duly sworn, deposes and says: I am one of the plaintiffs in the above entitled action and also the attorney of record for the plaintiffs. This affidavit is made in answer to the motion of the de- 191 fendants by order to show cause dated January 14, 1942. The defendants seek by their application: (1) An order striking out the complaint as sham and false; (2) an order directing the institution of disciplinary proceedings against the plaintiffs; (3) declaring the amended complaint to be a nullity; and (4) denying leave to amend, if leave be necessary, and in the alternative, if the amendment of the complaint be deemed proper, then that the Court enter an order, (a) dismissing the action of the amended complaint on the ground that the venue is improper; (b) that the amended complaint does not state a cause of action; and (c) granting summary judgment to the defendants on the 192 = ground that there is no genuine issue and no cause of action as to any material fact. The original complaint in this action filed in this Court on December 17, 1941 and the amended complaint filed January 14, 1942 are neither sham nor false. The ultimate facts and conclusions therein set forth are amply supported by the indictment against the defendants herein by the United ~— 65 Opposing Affidavit of Emanuel Thebner. States Grand Jury in and for the Southern District of New York, at the March 1940 Term (C. 107-169) ; the two bills of particulars filed by the United States Attorney Gen- eral in said criminal action; and the complaint in equity of the United States Government; and the consent decree entered in said action now on file in this Court (Civil 9-404), all of which are made a part of this affidavit. Revised Statutes of the United States §§3490-3494 (31 U. S. C. 231-235) specifically permit the plaintiffs as citi- zeus to institute and prosecute this action. This action was in fact instituted by plaintiffs pursuant to said statutes and in absolute good faith. The plaintiffs verily believe and are of the opinion that by reason of the unlawful acts of the defendants, the defendants did, in fact, defraud the Govern- 194 ment of the United States of large sums of money, as de- ponent verily believes. Deponent did not wilfully violate any of the provisions of the Federal Rules of Civil Procedure in any way, shape or form, and in particular Rule 11. The plaintiffs here and now state unequivocally that the charge of the defendants that deponent signed the complaint which is alleged was false in material particulars and that deponent knew it to be false, is totally untrue, unfair and unwarranted; and the request for the institution of disciplinary action against deponent and the plaintiffs is equally unfair and unwar- ranted. 193 195 Plaintiffs respectfully submit that the defendants’ con- tention that the amended complaint is a nullity is totally without substance and merit. Rule 15A of the Federal Rules of Civil Procedure entitles the plaintiffs to serve an amended complaint once as of course within twenty days after service of the complaint. j 7 Opposing Affidavit of Emanuel Thebner. The records of this Court show that the original com- plaint was served on Bausch & Lomb and the individual defendants on December 26, 1941, and on Carl Zeiss, Inc., on December 31, 1941. Since the plaintiffs had twenty days thereafter to amend their complaint, once as of course, pur- suant to said Rule 15A, the time within which to do such act did not expire until January 15th and January 20th, 1942, respectively. It is conceded that the amended complaint was duly served on January 13th, 1942 and was duly filed in the Clerk's office of this Court on January 14, 1942. The motions of the defendants are not “responsive plead- ings” within the provisions of Rule 7A. Therefore, the 197 plaintiffs had the clear right to amend their complaint, once as of course, withont cbtaining the prior leave of this Court. This was recognized by Mr. Seymour, defendant’s counsel by requesting an extension of time to answer and by the order to show cause dated January 6, 1942 containing such relief. Mr. Seymour there virtually admits that the defendants, in their application, have not submitted any responsive plead- ing. The only responsive pleading to a complaint allowed under Rule 7A, is an answer, and no answer had been served. It is therefore clear that the plaintiffs were within their rights in serving the amended complaint and that the service thereof was duly made pursuant to the Federal Rules afore- said. Plaintiffs further respectfully submit that in view of the proper service of the amended complaint in this action, the defendants’ original motions under the order to show cause of January 6th, 1942, become academic and should not now be entertained by this Court. 196 198 . a 67 Opposing Affidavit of Emanuel Thebner. Defendants are not entitled to the alternative relief under the order to show cause obtained by the defendants on Jan- uary 14th, 1942, being the relief they had applied for by order to show cause of January 6th, 1942. Rule 56c of the Federal Ruies of Civil Procedure provides that a motion for summary judgment must be served at least ten days before the time specified for the hearing. Plaintiffs submit that this statutory time allowed the op- position until the hearing of the motion for summary judg- ment may not be cut down without the consent of the adverse party. The plaintiffs do not consent to any lesser time than that provided for in Rule 56C and do not consent to such a hearing now. It is respectfully submitted that plaintiffs are entitled 200 under the Rules of Civil Procedure §§26, 31 and 37, to apply for examination before trial, discovery and inspection and pre-trial relief even before answer. The granting of the ex-parte stay in the order of January 14, 1942 without notice to the plaintiff and without giving them an opportunity to be heard was prejudicial to them under the aforesaid respects. The unfairness of Mr. Seymour in making the charges is further manifest by the fact in obtaining the order to show cause, he also procured a stay of this Court on the part of the plaintiffs from taking any further proceedings in this action until the final decision upon this motion and the prior motion made by the order to show cause dated January 6th, 1942. It is obvious that the effect was to prevent the plaintiffs and deponent from properly preparing to meet the prior motion, which is also renewed on this application as for alternative relief to dismiss the complaint and for summary judgment. Mess 199 201 Fe An Ot ORAL AERA Ot TE Ns NEN. 202 208 204 : y Opposing Affidavit of Emanuel Thebner. The plaintiffs, therefore, request that the stay be vacated and that should this Court entertain the application for alternative relief, notwithstanding the service of the amended complaint, that the hearing of that application be set for a date sufficient in advance to give deponent an opportunity to properly prepare to oppose such application. The moving papers on this application are entirely inac- curate in the statements charging falsity to certain of the allegations of the complaint. In reality it will be noted from a reading of the affidavit of Mr. Herbert Eisenhart, verified January 5, 1942, submitted on the pending prior motion, that they raise issues of fact and give their own version which is contrary to the matters alleged in the indictment, One of the attacks upon the alleged falsity of the com- plaint is that it appears from the face of the agreements between the defendants Bausch & Lomb Optical Company and Carl Zeiss, Jena, Germany that Carl Zeiss, Inc. is not a party thereto, As a matter of fact, however, and as a matter of law, it is respectfully submitted that that fact would not prevent proof that other parties not named in the contract, were or became liable thereon even if the cause of action were based upon the contract, which is not the fact. Plaintiffs’ cause of action as stated before and alleged in the complaint, is for fraud practiced on the United States Government, That could be established from the other allegations of the com- plaint even without the allegations of the conspiracy. In other words, plaintiffs’ theory of the case under T, 31 (U.S. C. §$$231-235) was two-fold. The fraud committed on the government may be by making or causing to be made of false claim against the government or obiaining the pay- 69 Opposing Affidavit of Emanuel Thebner. ment or allowance of any claim, knowing it to be false or fraudulent. Both these alternatives were set forth in the complaint. The principal attack upon the complaint is that Carl Zeiss, Inc. was not physically a party to the contracts between Bausch & Lomb Optical Company and Carl Zeiss, Jena, Germany. The exclusion from the original complaint of reference to Carl Zeiss, Jena, Germany was because there was an absolute identity between Carl Zeiss, Inc. and Carl Zeiss, Jena, Germany, which could be proven by factual evidence as appears from the indictment aforesaid as a matter of fact and as a matter of law, it would appear to have been unnecessary because the charge in the complaint was that of tort and Carl Zeiss, Inc. as a tort feasor. That in so doing it was an agent is entirely immaterial, as an agent is liable for tort as well as the principal. As to the factual matter, deponent desires to call to the attention of the Court the following which are not mentioned in the moving affidavits. Paragraph “7” of the indictment states: “Whenever it is hereinafter alleged in this indictment that the defendant Zeiss did do, or perform any act or thing, the said allegation shall be deemed to mean that the said act or thing was done by Zeiss, either in its own name or, or through the instrumentality and agency of Nedinsco or Car] Zeiss, Inc.” Insofar as anything stated in the indictment relates or tends to charge a violation of the Sherman Anti-Trust Act or the Wilson Tariff Act by the involvement of interstate or foreign commerce, it is principally in that connection that Carl Zeiss, Jena, Germany had a bearing in the indictment. 205 206 207 “- 70 Opposing Affidavit of Emanuel Thebner. Insofar as this action is concerned, Carl Zeiss, Inc., which was and is to all intents and purposes, Carl Zeiss, Jena, Germany, is the only party that was necessary to plead in this action as a tort feasor. In this connection, we call attention to the following state- ments in the indictment: 208 Par. 4: “For a number of vears, including the three years next preceding the date of the return of this indictment, Zeiss has carried on business in the Borough of Manhattan, City of New York, and within the Southern District of New York, through the instrumentality and agency of Carl Zeiss, Inc., a corporation organized on or about 209 December 11th, 1925, and existing by virtue of the laws of the State of New York, which is a wholly owned subsidiary of Zeiss, and is com- pletely dominated, controlled, and operated by Zeiss.” (Italics ours.) Par. 10: * * * * Bausch & Lomb and Zeiss for many years have manufactured and distributed and now manufacture and distribute and sell in the aggre- gate the greater part of all military optical in- struments manufactured and sold in the world.” 210 The Court will note according to the preamble first above mentioned this must be construed as well that Carl Zeiss, Inc. manufactured and distributed. Par. 11: “Bausch & Lomb manufactures military optical instruments at its plant in Rochester, New York, for sale and shipment in interstate commerce principally to the United States Government **ee#y 71 Opposing Affidavit of Emanuel Thebner. Par. 14: “* * * Bausch & Lomb and Zeiss (meaning as well Carl Zeiss, Inc., as per preamble) have been en- gaged in importing military optical instruments 211 into the United States through the Port of New York in the said Southern District of New York.” (Matter in parentheses ours. ) In paragraph “17” of the indictment it is alleged that the agreement of April 28, 1921 was supplemented on June 27, 1925 and again on October 28, 1925 and further states as follows: “To modify the provisions of paragraph 2 with respect to royalty payments and to modify paragraph 3 so as to specify the circumstances under which Bausch & Lomb and Zeiss (meaning Carl Zeiss, Inc. as per pre- amble) could make quotations on military optical in- struments, the eventual designation of which was the territory of the other, it being agreed that such a quota- tion could be made only with the consent of the other party to the agreement, and that the price quoted should be agreed upon by Zeiss (meaning Car] Zeiss, Inc. as per preamble) and Bausch & Lomb. Bausch & Lomb and Zeiss (meaning Carl Zeiss, Inc. as per preamble) agreed that if either were requested to make bids by any government on military optical instruments in- tended for use in the territory allotted the other, the requested quotation would contain a mark-up over the bidders regular price up to 20% of said regular price, which excess was intended to throw the business to the party to whom the territory was allotted and, in case such bid were successful, the excess was to be paid by the successful bidder to the other contracting party.” (Matter in parentheses ours. ) 212 213 214 215 216 72 Opposing Affidavit of Emanuel Thebner. The modifications of the agreement of 1921 are further set forth in 17-d of the indictment, which paragraph con- cludes as follows: “Notwithstanding this change in the form of April 28th, 1921 agreement as supplemented, Bausch & Lomb and Zeiss intended and continued to carry out the terms of Paragraph % and 9 of the April 28th, 1921 agreement as supplemented in 1925.” These new modification agreements were made on Novem- ber 26th, 1926 and on December 24th, 1926, respectively, which period of time is approximately one year after the incorporation of Carl Zeiss, Inc. As the Court will undoubtedly read the indictment in connection with this affidavit, it is not necessary to continue further quoting therefrom, A reference to the amended complaint by comparison with the original, indicates except for a single correction which was an inadvertent error in stating that the three indi- vidual defendants who it is conceded were officers and directors of Bausch & Lomb, Inec., was mistakenly stated to be also officers and directors of Carl Zeiss, Inc, All of the other additional allegations are in the nature of evi- dentiary matters that could have been proven upon the trial under the original complaint, but out of abundance of caution and to meet the hypercritical attack of the com- plaint, it was deemed better to serve an amended complaint. The basic cause in all respects to wit: the conspiracy and the fraud and the parties are all the same. In substance, the amended complaint by addition and changes were to the following effect : (1) Wherever Carl Zeiss, Inc. was referred to as having 73 Opposing Affidavit of Emanuel Thebner. agreed, we now allege it to be Carl Zeiss, Jena, Germany, the party mentioned on the face of the agreement. (2) The showing of the complete control and domina- tion of Carl Zeiss, Inc. by Carl Zeiss, Jena, Germany. (3) The allegation that the acts and matters referred to in the complaint were carried out through the instrumen- tality and agency of Carl Zeiss, Inc., in substance the same as in the indictment. A change was also made instead of whereas it is alleged in the original complaint that all bids would contain a mark-up up to 20% over the regular price, it is alleged in the amended complaint in paragraph “11” that “A sum of money equal to a percentage of the gross sales price of each military optical instrument sold by Bausch & Lomb to the Government of United States, the said sum of money to be paid irrespective of whether the fees of military optical equipment so sold was covered in whole or in part by patents owned by Zeiss.” The indictment has a similar allegation (paragraph 17-b). Mr. Eisenhart in his affidavit of January 5, 1942 at page 8 states that Judge Goddard had asked Mr. Isseks whether any charge of fraud was involved, Mr. Isseks replied as follows: “No, sir, there is no charge of fraud against the defen- dants in connection with the acts complained of in the indictment.” 217 218 219 ; - Opposing Affidavit of Emanuel Thebner. This isolated sentence does not truly represent the position of the Assistant United States Attorney General. Mr. Isseks, however, upon further auestion by the Court as to why he should impose the maximum fine, shows that he meant by the statement, “that there was no fraud in- volved.” Mr. Isseks said: 220 “Your Honor | think the acts are sufficiently culpable, although not involving acts of coercion or threats to warrant the imposition of the maximum fine. This continued from 1921 to date, and the penalty imposed, if the penalty imposed by the maximum fine will be small compared to what the government would consider the defendant Bausch & Lomb has derived as benefits, and of course its officers, and I think that the reason itself ix sufficient for your Honor in imposing the maximum fine.” 221 The statement in Mr. Eisenhart's affidavit at page “9” charging that plaintiffs have seen fit to distort the earlier charges made by the government counsel and then proceed- ing to refer to the fact that Carl Zeiss, Inc. was not a party to the contract and at page “11” stating that Bausch & Lomb had no dealings with Carl Zeiss, Inc. manifests that de- fendants were attempting to get what may be said as “snap judgment” on the technicality that Carl Zeiss, Inc, was not, on the face of the contract, a party thereto. Without repeating what has already been said in that connection, showing that the criticism is not justified, there is presented questions of fact both as to the liability of Car! Zeiss, Inc. and as to whether Bausch & Lomb had deal- ings with Carl Zeiss, Inc. in connection with the matters alleged in the complaint. The indictment clearly supports the allegations of the complaint in both these respects. 222 a Opposing Affidavit of Emanuel Thebner. Mr. Eisenhart in his affidavit at page “10” in paragraph “2”, says: . 7 223 “Paragraph ‘8’ and ‘9 of the present complaint al- leged that defendant Bausch & Lomb on or about April 28, 1921 and the defendant Carl Zeiss, Inc. from on or about December 11, 1925 (together with the individual defendants alleged to be, but not in fact officers and directors of Carl Zeiss, Inc.), entered irts conspiracy, etc.” The allegation of paragraph “8” of the complaint in that connection is as follows: “The defendant Bausch & Lomb Optical Company from 224 on or about April 28, 1921 and the defendant Carl Zeiss, Inc. from the date of its incorporation, on or about December 11, 1925 and the individual defendants since the time they became officers and directors of said corporation * * *” In conclusion, plaintiffs respectfully state that their posi- tion herein taken with regard to the consideration of the motion for summary judgment at this time is not in order \o avoid u decision either as to the sufficiency of the original or ax to the sufficiency of the amended complaint nor as to the passing upon the motion for summary judgment, but 225 each be taken up in due order according to the course and practice of this Court, The foregoing matters in this affidavit were primarily addressed to the motion made by the defendant Bausch & Lomb Optical Company and the individual defendants. A like motion has also been made by the defendant Carl Zeiss, 226 227 228 76 Opposing Affidavit of Emanuel Thebner. Inc. To avoid duplication, we respectfully ask that this affidavit be read in opposition to both of said motions with the same force and effect as if a separate affidavit was filed in the Carl Zeiss, Inc.’s motion. WHEREFORE, deponent respectfully prays as follows: 1. That the motions of all the defendants instituted by orders to show cause dated January 14th, 1942 be denied in all respects. 2. That the motions of all the defendants made by order to show cause dated January 6, 1942 and by notice of mo- tion dated January 6, 1942, be denied in all respects. 3. That the stay contained in the order to show cause dated January 14, 1942 be vacated in all respects. 4. That the amended complaint be declared to have been properly and timely served and is a valid and subsisting pleading on the part of the plaintiffs herein. 5. In the event that the Court should not see fit to deny the motion for alternative relief under the orders to show cause of January 14, 1942 which was originally made by the defendants under the order to show cause dated Jan- uary 6th, 1942 and on notice of motion dated January 6, 1942, that the hearing be deferred for a reasonable time so that the plaintiffs would have an opportunity to prepare their opposition to said motion. (Sworn to by Emanuel Thebner, January 15th, 1942.) 17 Opposing Affidavit of Murray Brensilber. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 229 a [SAME TITLE] STATE OF NEW YorK, COUNTY OF NEW YorRK, 83. : MURRAY BRENSILBER, being duly sworn, deposes and says I am one of the plaintiffs in this action. That I have read the annexed affidavit of Emanuel Theb- 230 ner and that the same is true in all respects. That I re iterate the statements therein made as if herein repeated verbatim. (Sworn to by Murray Brensilber, January 15th, 1942.) 231 232 233 234 78 Amended Complaint. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK »™ [nance TITS) >. > Plaintiffs complaining of the defendants, for their amend- ed complaint, respectfully allege as follows: First: That the plaintiffs are and at all times herein mentioned were, and each of them is a citizen of the United States of America and of the State of New York, and each of them is a resident of the State of New York. Second: The plaintiffs bring this action in behalf of the United States of America and in their own behalf by vir- tue of and pursuant to United States Revised Statutes Sections 3490-3494 (31 U.S. C. 231-235). The matter in con- troversy exceeds, exclusive of interest and costs, the sum of $3000.00. Third: Upon information and belief that the defendant, Bausch & Lomb Optical Company, hereinafter called Bausch & Lomb is a corporation organized and existing under the Laws of the State of New York and has maintained and now maintains an office and place of business in the Borough of Manhattan, City of New York within this Southern Dis- trict of New York, and has transacted business and now transacts business within said District. Fourth: Upon information and belief, Carl Zeiss, Inc. is a corporation organized and existing under the Laws of the State of New York and has maintained and now main- a . Amended Complaint. tains its principal place of business and office in the Borough of Manhattan, City of New York within this Southern District of New York, and has transacted business and now 23 transacts business within said District. ° Fifth: Upon information and belief, Carl Zeiss (herein- after called Zeiss), is a corporation or association existing under and by virtue of the Laws of Germany, and has its principal place of business in Jena, Germany, and for many years has been engaged in the business of manufacturing military optical instrum [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0069%3A01. Public record. Not legal advice.