353 F2d 182 Klastorin v. C Roth a
353 F.2d 182
M. KLASTORIN, Plaintiff-Appellant,
Clyde C. ROTH et al., Defendants, and George A. Fuller
No. 132, Docket 29889.
United States Court of Appeals Second Circuit.
Argued Nov. 4, 1965.
Decided Nov. 5, 1965.
Appeal from an order of the United States District Court for the Southern District of New York John F. X. McGohey, J.,
Kaufman, Taylor, Kimmel & Miller, New York City (Stanley L. Kaufman and Shephard S. Miller New York City, on the brief), for plaintiff-appellant.
Kramer, Marx, Greenlee & Backus, New York City (John J. Hayes and Norwood P. Beveridge, Jr., New York City, on the brief), for defendant-appellee George A. Fuller Company.
Securities and Exchange Commission, Washington, D.C. (Philip A. Loomis, Jr., Gen., Counsel, David Ferber, Sol., Richard M. Phillips, Special Counsel, Rishard E. Nathan, Atty.), amici curiae.
Before KAUFMAN and HAYS, Circuit Judges, and TIMBERS, District Judge.*
The appeal in this instance is from Judge McGohey's denial of Klastorin's motion for a permanent injunction.1
Of the District of Connecticut, sitting by designation
Klastorin sought a permanent injunction restraining any use of the proxy statement on the ground that on its fact it violated Section 14(a) of the Securities and Exchange Commission Act of 1934
Since this case is soon to be tried, it is advisable that the District Judge be advised that the S.E.C., as amicus curiae, urges that Judge McGohey, in attaching weight to the inaction of the Commission, misapprehended its function. It argues convincingly that no inference is to be drawn from its inaction respecting the alleged violation of its proxy rules; nor can Fuller urge that the Commission's action, in any sence, constituted approval of the solicitation material
Moreover, review by the Commission of the material is informal in nature. Regulation 14, 17 CFR 240.14a-1, et seq.; Securities and Exchange Commission v. Henwood, CCH Fed.Sec.L.Rep. P91, 125 (S.D.Cal.1961), modified on other grounds, 298 F.2d 641 (C.A.9), certiorari denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56 (1962). See also J.I. Case Co. v. Borak, 377 U.S. 426 (1964).