Alleghany Corporation v. Kirby, 490

• Decision Date: 21 April 1965
• Docket Number: No. 490,Docket 29652.,490
• Citation: Alleghany Corporation v. Kirby, 344 F.2d 571 (2nd Cir. 1965)
• Parties: ALLEGHANY CORPORATION, Plaintiff-Appellee, v. Allan P. KIRBY, Charles T. Ireland, Jr., and Fred M. Kirby, Defendants-Appellees, Randolph Phillips, Defendant, Margaret L. Holt and Kathleen L. McMahon, Applicants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

344 F.2d 571 (1965)

ALLEGHANY CORPORATION, Plaintiff-Appellee, v. Allan P. KIRBY, Charles T. Ireland, Jr., and Fred M. Kirby, Defendants-Appellees Randolph Phillips, Defendant Margaret L. Holt and Kathleen L. McMahon, Applicants-Appellants.

No. 490, Docket 29652.

United States Court of Appeals Second Circuit.

Argued April 19, 1965.

Decided April 21, 1965.

Certiorari Granted June 1, 1965.

Stuart N. Updike, of Townley, Updike, Carter & Rodgers, New York City (J. Howard Carter, Lee W. Meyer, Ronald S. Daniels, Richard J. Barnes, New York City, on the brief), for applicants-appellants.

Mark F. Hughes, of Willkie, Farr, Gallagher, Walton & FitzGibbon, New York City (Vincent R. FitzPatrick, New York City, on the brief), for plaintiff-appellee.

Walter R. Mansfield, of Donovan, Leisure, Newton & Irvine, New York City (John E. Tobin, New York City, on the brief), for defendants-appellees.

Before KAUFMAN, HAYS and ANDERSON, Circuit Judges.

Certiorari Granted June 1, 1965. See 85 S.Ct. 1772.

KAUFMAN, Circuit Judge:

As Judge Friendly recently wrote, "The affairs of Alleghany Corporation, from its founding by the Van Sweringen brothers in 1929, have given rise to a flood of litigation that must be unparalleled in American corporation law." Willheim v. Murchison, 342 F.2d 33 (2 Cir. Feb. 10, 1965). The aspect of that litigious history presently before us — which may occupy no more than a footnote when the definitive chronicle is written — involves an appeal by Margaret L. Holt and Kathleen L. McMahon ("the applicants"), as owners of 650 and 550 shares, respectively, of Alleghany preferred stock, from an order of the District Court denying them leave to intervene as a matter of right, pursuant to Fed.R.Civ.P. 24(a) (2), in a chapter of the history which recently occupied this Court's attention for more than a year. Alleghany Corp. v. Kirby, 2 Cir., 333 F.2d 327 (1964), aff'd by equally divided Court en banc, 2 Cir., 340 F.2d 311 (1965). Intervention is sought at this last-minute stage of proceedings that trace back to 1954 in order to petition derivatively, on behalf of the Corporation, for a writ of certiorari from the Supreme Court to review the judgment dismissing Alleghany's complaint in an action to set aside the settlement of an earlier stockholders' derivative action. The District Court denied the application, finding and concluding, with reference to the explicit language of Rule 24(a) (2), that it was untimely and that the applicants "have had and do have adequate representation." We affirm.

Because the complex factual basis of the underlying litigation was fully delineated in this Court's earlier opinions, 333 F.2d 327, it suffices to set out in skeletal chronological form the facts relevant to this appeal. The basic action, in which the applicants seek to intervene, began in September 1960 as a stockholders' derivative suit brought by John D. Murchison, Clint W. Murchison, Jr., and Gerard L. Fossland (hereafter, together with affiliates, "the Murchison group") against the Corporation, Allan P. Kirby and others ("the Kirby group"). On June 26, 1962, after the Murchison group had, by shareholder vote, wrested control of the Board of Directors from the Kirby management, the late Judge Dawson approved the substitution of the Corporation as plaintiff and the dropping of the prior shareholder plaintiffs. On May 20, 1963, Judge Dawson dismissed the complaint, D.C., 218 F. Supp. 164, and the Murchison Board of Directors thereafter authorized the applicants' counsel in this action, who had represented first the Murchison group and thereafter the Corporation, to appeal to this Court. On December 4, 1963, two days after a regular panel of this Court heard oral argument of the appeal, the seesaw game between Murchison and Kirby continued and the Kirby group regained control of the Corporation. The appeal, of course, continued and after we affirmed the judgment dismissing the complaint, one judge dissenting, on May 20, 1964, the Board of Directors, including defendant Kirby, voted unanimously to authorize a petition for rehearing en banc. The petition having been granted and the Court having announced on January 12, 1965, that it was evenly divided, the judgment below was accordingly affirmed.

The Alleghany Board of Directors thereafter consulted both the law firm that had represented the Corporation before this Court and now appears for the applicants, and other independent counsel who now appear for the Corporation in this phase of the litigation, concerning the advisability of petitioning the Supreme Court for a writ of certiorari and the responsibility of the Board towards the Corporation's shareholders in making that decision. On February 9, 1965, the alleged independent Board members — interested defendants Allan P. Kirby, Charles T. Ireland, Jr., and Fred M. Kirby having absented themselves from the meeting and one director abstaining for personal reasons — voted unanimously not to authorize a petition for a writ of certiorari. The papers filed with Chief Judge Ryan on the instant belated application for intervention reveal that the independent directors, in reaching that decision, considered not only the relatively modest cost of an application for certiorari, but also the consequences to the Corporation if the writ were granted and the judgment dismissing the complaint reversed.¹

Although the sophisticated applicants for intervention concededly "followed the fortunes or ill fortunes of the Alleghany Corporation through this litigation with pretty close attention," they allegedly did not learn of the Board's decision not to seek certiorari until April 4, 1965. Several days later, upon appellants' application, Chief Judge Ryan signed an order directing the Corporation, Kirby and the other defendants to show cause why intervention should not be permitted. After a careful hearing, he denied intervention, noting among other considerations that the applicants had watched closely the course of the litigation from the outset but sought to intervene only on the eve of the deadline for filing a certiorari petition.²

We fully agree with the District Court's conclusion that, on the record before it, the decision of the independent members of the Board of Directors not to apply for certiorari, after consultation with independent counsel and full presentation and consideration of relevant business and legal implications, did not result in "inadequate representation as a matter of law." We know of no proposition of law that permits shareholders, absent any allegations of bad faith, collusion or negligence, concededly neither present nor charged here, cf. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961), to intervene, as of right, in order to continue litigation that independent members of the Board of Directors, acting in good faith and in the exercise of sound business judgment, have decided to terminate. Indeed, the independent directors who voted unanimously to take this step represent approximately 1,800,000 shares of Alleghany common stock whose equity would increase by $10,000,000 if the applicants' prophecy of ultimate victory were to be fulfilled.

In any event, it is necessary to uphold the order denying intervention at this stage, when this protracted litigation which has occupied so many judges' time for so long is taking its last gasp of breath, since we do not believe Judge Ryan abused his...