Koppers United Co. v. SECURITIES & EXCHANGE COM'N, No. 8404

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtGRONER, Justice, and EDGERTON and ARNOLD, Associate Justices
Citation138 F.2d 577
PartiesKOPPERS UNITED CO. v. SECURITIES & EXCHANGE COMMISSION. KOPPERS CO. v. SAME. EASTERN GAS & FUEL ASSOCIATES v. SAME.
Decision Date11 October 1943
Docket Number8403,No. 8404,No. 8481.

138 F.2d 577 (1943)

KOPPERS UNITED CO.
v.
SECURITIES & EXCHANGE COMMISSION.

KOPPERS CO.
v.
SAME.

EASTERN GAS & FUEL ASSOCIATES
v.
SAME.

Nos. 8404, 8403, No. 8481.

United States Court of Appeals for the District of Columbia.

Argued June 3, 1943.

Decided October 11, 1943.


138 F.2d 578

Mr. Carleton M. Crick, of Pittsburgh, Pa., with whom Messrs. James S. Eastham, of Boston, Mass., and Walter N. Tobriner, of Washington, D. C., were on the brief, for petitioners.

Mr. Homer Kripke, Assistant Solicitor, S.E.C., of Philadelphia, Pa., with whom Mr. John F. Davis, Solicitor, S.E.C., of Philadelphia, Pa., was on the brief, for respondent.

Before GRONER, Chief Justice, and EDGERTON and ARNOLD, Associate Justices.

EDGERTON, Associate Justice.

These are petitions under § 24(a) of the Public Utility Holding Company Act of 19351 to review an order of the Securities and Exchange Commission. Petitioners applied to the Commission for declarations of their status under §§ 2(a) (7) and 2(a) (8) of the Act.2 Koppers United Company (Koppers United) asked the Commission to declare that Brooklyn Union Gas Company (Brooklyn) was not its subsidiary. Eastern Gas and Fuel Associates (Eastern) asked to be declared not a subsidiary of Koppers Company. Koppers Company (not Koppers United Company) asked to be declared not a holding company with reference to either Brooklyn or Eastern. The Commission held a consolidated hearing and on September 28, 1942, denied all the applications.

On November 25, 1942, Koppers United and Koppers Company filed petitions for review of the Commission's order in this court. On the same day Eastern filed a petition for review of the order in the Court of Appeals for the First Circuit. On February 3, 1943, the Commission filed a transcript of the record in this court and on March 2, 1943, the First Circuit entered an order transferring the petition of Eastern to this court. On March 16, 1943, we granted leave to Eastern to prosecute its petition for review in this court but reserved the question of our jurisdiction until the hearing on the merits. The parties agree, rightly we think, that we have jurisdiction. The three petitions were consolidated for hearing.

The Koppers system is engaged in the production and marketing of coal and its by-products. The system owns or has a substantial interest in mines, a railroad, coal-cars, a steamboat company, dock facilities, coke plants, tar plants, storage yards and delivery trucks. It also manufactures and erects coke plants, gas apparatus and gas manufacturing machinery. The top holding company of the Koppers pyramid is Koppers United. On one side of the pyramid, Koppers United owns the entire voting stock of Fuel Investment Associates, which owns 28.36 per cent of the voting stock of Eastern, which is itself a holding company and controls a number of operating gas utilities. On the other side of the pyramid, Koppers United owns the entire voting stock of Koppers Company which controls 23.87 per cent of the voting stock of Brooklyn, a public-utility gas company. There is one important connection between the two sides of the pyramid, viz., Koppers Company owns 14.59 per cent of the stock of Eastern. Other subsidiaries of the system, some of which are operating gas utilities, are not directly involved here.

Both briefs refer to unprinted parts of the transcript. Our rules require the parties to print such parts of the record as they desire the court to read.3 Except in proceedings in forma pauperis, three judges cannot reasonably be asked to search out references in a single copy of a bulky manuscript.

The aim of the petitions to the Commission was to obtain declarations that the relation of holding company and subsidiary did not exist between Koppers Company and Eastern, and likewise did not exist between either of the Koppers corporations and Brooklyn. Since in each case "10 per centum or more of the outstanding voting securities * * * are * * * owned," it follows directly from the definitions in § 2 (a) (7) and § 2 (a) (8) of the Act that the relation does exist unless the Commission "declares" the contrary. When one

138 F.2d 579
company owns 10 per cent of the stock of another the Commission is nevertheless authorized by § 2 (a) (7) to declare that the owning company is not a "holding Company" if it finds that the company "(i) does not, either alone or pursuant to an arrangement or understanding with one or more other persons, directly or indirectly control a public-utility or holding company either through one or more intermediary persons or by any means or device whatsoever, (ii) is not an intermediary company through which such control is exercised, and (iii) does not, directly or indirectly, exercise (either alone or pursuant to an arrangement or understanding with one or more other persons) such a controlling influence over the management or policies of any public-utility or holding company as to make it necessary or appropriate in the public interest or for the protection of investors or consumers" that the applicant be subject to the Act. Section 2(a) (8), which deals with subsidiary companies, uses corresponding language; it substitutes "is not controlled * * * by" for "does not * * * control", and "are not subject to a controlling influence" for "does not * * * exercise * * * a controlling influence." The Commission was unable to make the statutory findings and therefore denied the petitions. Section 24(a) of the Act provides that on review by a court "the findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive."

Although petitioners admit that Koppers United and Fuel Investment control Eastern, they deny that Koppers United...

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3 practice notes
  • Interstate Commerce Commission v. Jersey City, No. 767
    • United States
    • United States Supreme Court
    • 29 Mayo 1944
    ...prevented altogether by the mere fact that they take time.' See also Koppers United Co. v. Securities and Exchange Commission, App.D.C., 138 F.2d 577; Colorado Radio Corp. v. Federal Communications Commission, 73 App.D.C. 225, 118 F.2d 24; Red River Broadcasting Co. v. Federal Communication......
  • Phillips v. Securities and Exchange Commission, No. 19
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 16 Enero 1968
    ...556. Cited in support of the position taken in the letter was the quite analogous case of Koppers United Co. v. SEC, 78 U.S.App.D.C. 151, 138 F.2d 577 We accept the validity of this view when applied, as in the Koppers case, to the evidence as a whole, although we question whether it would ......
  • Pennaluna & Company v. Securities and Exchange Com'n, No. 22143.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 11 Julio 1969
    ...2 L.Loss, Securities Regulations 776-81 (2d ed. 1961). See SEC v. Culpepper, supra; Koppers United Co. v. SEC, 78 U.S.App.D.C. 151, 138 F.2d 577 (1943); SEC v. Franklin Atlas Corp., By January 1963, Magnuson was unquestionably in a position of control of Silver Buckle through stock acquisit......
3 cases
  • Interstate Commerce Commission v. Jersey City, No. 767
    • United States
    • United States Supreme Court
    • 29 Mayo 1944
    ...prevented altogether by the mere fact that they take time.' See also Koppers United Co. v. Securities and Exchange Commission, App.D.C., 138 F.2d 577; Colorado Radio Corp. v. Federal Communications Commission, 73 App.D.C. 225, 118 F.2d 24; Red River Broadcasting Co. v. Federal Communication......
  • Phillips v. Securities and Exchange Commission, No. 19
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 16 Enero 1968
    ...556. Cited in support of the position taken in the letter was the quite analogous case of Koppers United Co. v. SEC, 78 U.S.App.D.C. 151, 138 F.2d 577 We accept the validity of this view when applied, as in the Koppers case, to the evidence as a whole, although we question whether it would ......
  • Pennaluna & Company v. Securities and Exchange Com'n, No. 22143.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 11 Julio 1969
    ...2 L.Loss, Securities Regulations 776-81 (2d ed. 1961). See SEC v. Culpepper, supra; Koppers United Co. v. SEC, 78 U.S.App.D.C. 151, 138 F.2d 577 (1943); SEC v. Franklin Atlas Corp., By January 1963, Magnuson was unquestionably in a position of control of Silver Buckle through stock acquisit......

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