Kukatush Mining Corp. v. Securities and Exchange Com'n, No. 16734.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBAZELON, , and BASTIAN and BURGER, Circuit
PartiesKUKATUSH MINING CORPORATION (N.P.L.) et al., Appellants, v. SECURITIES AND EXCHANGE COMMISSION et al., Appellees.
Docket NumberNo. 16734.
Decision Date11 October 1962

309 F.2d 647 (1962)

KUKATUSH MINING CORPORATION (N.P.L.) et al., Appellants,
v.
SECURITIES AND EXCHANGE COMMISSION et al., Appellees.

No. 16734.

United States Court of Appeals District of Columbia Circuit.

Argued March 21, 1962.

Decided October 11, 1962.


309 F.2d 648
COPYRIGHT MATERIAL OMITTED
309 F.2d 649
Mr. G. Duane Vieth, Washington, D. C., with whom Messrs. Abe Fortas and William L. McGovern, Washington, D. C., were on the brief, for appellants

Mr. Ellwood L. Englander, Asst. Gen. Counsel, S. E. C., with whom Mr. Robert L. McCloskey, Atty., S. E. C., was on the brief, for appellees.

Before BAZELON, Chief Judge, and BASTIAN and BURGER, Circuit Judges.

BURGER, Circuit Judge.

Kukatush Mining Corporation is an alien corporation organized under the Mining Companies Act of Quebec, Canada; Kukatush Mining Company Ltd. is a successor corporation organized under the Companies Act of Canada. They appeal from a judgment of the District Court dismissing their complaint for failure to state a claim upon which relief could be granted, denying a motion for a preliminary injunction and for summary judgment.

The proceedings instituted by appellants were directed at the action of the Securities and Exchange Commission, appellees, in listing appellants by name on the so-called "Canadian Restricted List" without notice to appellants, without hearing and without opportunity for these appellants to be heard. The list in question is a public statement by the Commission of the names of Canadian corporations whose securities the Commission has reasonable cause to believe are being or may have been distributed in the United States in violation of registration requirements of the Securities Act of 1933, 15 U.S.C.A. § 77a et seq. Appellants sought an injunction in the District Court, to strike their names from the Commission's Canadian Restricted List which they describe as a "blacklist"; they contend that its issuance and publication without notice or hearing constituted a violation of Section 9(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1008(a) and a denial of due process of law under the Constitution of the United States.1

(1)

The Commission contends, inter alia, that appellants as non-resident aliens having no assets in this country on which to base jurisdiction, have no standing to sue. The decided cases would appear to support this position.

That our courts are open in some circumstances, and for some purposes, to persons and corporations of friendly foreign powers is shown by various cases. The case of Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 28 S.Ct. 337, 52 L. Ed. 625 (1908), relied on by the dissent, sheds little real light on the problem since it is readily distinguishable; there the court had jurisdiction of the res which consisted of assets of an insolvent debtor which it refused to allow the foreign claimant to remove. Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473 (1931), similarly involves a res within our jurisdiction — contracts for ships under construction in American yards. Cia Mexicana De Gas S. A. v. Federal Power Comm., 167 F.2d 804 (5th Cir.1958), held a Mexican corporation was a "person

309 F.2d 650
aggrieved" under the Natural Gas Act, 15 U.S.C.A. § 717 et seq. and allowed intervention to seek judicial review. The order under review dealt with the transmission of natural gas from Texas into Mexico. Estrada v. Ahrens, 296 F.2d 690 (5th Cir.1961), is an immigration case falling within the purview of the Administrative Procedure Act. Standing to sue in cases involving rights of immigrants and persons subject to deportation has always stood on a special footing

It appears, therefore, that the decided cases granting standing to some aliens deal either with resident aliens, or claims of non-residents where the court had jurisdiction of the subject res or with the preferred rights under immigration laws. See also Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950); Pauling v. McElroy, 107 U.S.App.D.C. 372, 278 F.2d 252, cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960).

The doubts about standing, however grave, must in the present state of the law be resolved against appellants even though the decisions over the years disclose a definite trend to relax the rigidities of the earlier cases.

(2)

We turn next to the contentions of appellant on the merits in view of the importance of the issues presented and treat those contentions assuming, arguendo, that appellants have standing.

The challenged list is in the form of a public press release available to financial publications and newspapers. Release No. 4407, Securities Act of 1933 (Aug. 17, 1961). The list is in the nature of a warning to brokers and dealers in securities which advises (1) that the securities of the listed companies are not registered for sale in the United States under our law and (2) that the Commission has information that those securities have been or will be offered for sale illegally. The list or announcement neither states nor implies that the appellants, as issuers, are involved in any illegal acts but only that their stock may be the subject of unregistered and therefore illegal transactions. For its purposes and at this stage the Commission does not undertake to pass on any act of appellants.

We reject appellants' contention that the "Canadian Restricted List" is a "blacklist," so far as either appellant is concerned, since it forms no basis of direct or adverse action against the appellants, cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 143, 71 S.Ct. 624, 95 L.Ed. 817 (1951); rather it is, as we have suggested, merely a warning to the public, cautioning brokers and dealers to make certain that their transactions in such securities are not illegal. The stock of a foreign corporation, whatever the merit of the issuer or value of the stock, can be sold in another jurisdiction only on the terms prescribed by that jurisdiction. To say, as the Commission does here in its "listing" process, that Kukatush's stock is not eligible to be sold here is simply to state a fact — that the securities have not been registered — which the American public is entitled to know. There is no requirement of a hearing prior to the dissemination of such information. See Fay v. Miller, 87 U.S.App.D.C. 168, 183 F.2d 986 (1950); Hoxsey Cancer Clinic v. Folsom, 155 F.Supp. 376 (D.D.C.1957); Andrews v. Chesapeake & Potomac Telephone Co., 83 F.Supp. 966 (D.D.C.1949). Cf. Holman v. Securities & Exchange Comm., 112 U.S.App.D.C. 43, 299 F.2d 127 (1962). The List does not charge the appellants with any wrongdoing and, indeed, specifically states that the issuers of the listed securities are not necessarily involved in the sales. The Commission expressly disavows any purpose of commenting, through the List, on the investment merits of the securities named. The List does not purport to direct or to arrest action by appellants but is merely advisory; appellants' "rights" are in no sense...

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28 practice notes
  • Ajay Nutrition Foods, Inc. v. Food & Drug Administration, Civ. A. No. 328-73.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 5, 1974
    ...further, cited case law relating to this statutory power. In Kukatush Mining Corp. v. Securities and Exchange Comm'n, 114 U.S.App.D.C. 27, 309 F.2d 647 (1962), it was held — Circuit Judge Burger writing the opinion — that a Canadian corporation could not obtain an injunction against the pla......
  • In re Conservatorship Turner, No. M2013-01665-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • May 9, 2014
    ...(2d Cir. 1963); Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir. 1963); Kukatush Min. Corp. (N.P.L.) v. Securities and Exchange Commission, 309 F.2d 647 (D.C. Cir. 1962); Robert E. Hicks Corp. v. National Salesmen's Training Ass'n, 19 F.2d 963 (7th Cir. 1927); Konigsberg v. Time, Inc., 288 F......
  • John Doe v. Exxin Mobil Corp., No. 09-7125
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 8, 2011
    ...court's opinions, they have been qualified, if not overruled, by subsequent Supreme Court decisions.59 In Kukatush Mining Corp. v. SEC, 309 F.2d 647 (D.C. Cir. 1962), this court held that a non-resident alien corporation, which transacted no business and had no assets in the United States, ......
  • Viii v. Exxon Mobil Corp.., Nos. 09–7125
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 8, 2011
    ...they have been qualified, if not overruled, by subsequent Supreme Court decisions.59 [654 F.3d 67] In Kukatush Mining Corp. v. SEC, 309 F.2d 647 (D.C.Cir.1962), this court held that a non-resident alien corporation, which transacted no business and had no assets in the United States, lacked......
  • Request a trial to view additional results
27 cases
  • Ajay Nutrition Foods, Inc. v. Food & Drug Administration, Civ. A. No. 328-73.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 5, 1974
    ...further, cited case law relating to this statutory power. In Kukatush Mining Corp. v. Securities and Exchange Comm'n, 114 U.S.App.D.C. 27, 309 F.2d 647 (1962), it was held — Circuit Judge Burger writing the opinion — that a Canadian corporation could not obtain an injunction against the pla......
  • In re Conservatorship Turner, No. M2013-01665-COA-R3-CV
    • United States
    • Court of Appeals of Tennessee
    • May 9, 2014
    ...(2d Cir. 1963); Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir. 1963); Kukatush Min. Corp. (N.P.L.) v. Securities and Exchange Commission, 309 F.2d 647 (D.C. Cir. 1962); Robert E. Hicks Corp. v. National Salesmen's Training Ass'n, 19 F.2d 963 (7th Cir. 1927); Konigsberg v. Time, Inc., 288 F......
  • John Doe v. Exxin Mobil Corp., No. 09-7125
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 8, 2011
    ...court's opinions, they have been qualified, if not overruled, by subsequent Supreme Court decisions.59 In Kukatush Mining Corp. v. SEC, 309 F.2d 647 (D.C. Cir. 1962), this court held that a non-resident alien corporation, which transacted no business and had no assets in the United States, ......
  • Viii v. Exxon Mobil Corp.., Nos. 09–7125
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 8, 2011
    ...they have been qualified, if not overruled, by subsequent Supreme Court decisions.59 [654 F.3d 67] In Kukatush Mining Corp. v. SEC, 309 F.2d 647 (D.C.Cir.1962), this court held that a non-resident alien corporation, which transacted no business and had no assets in the United States, lacked......
  • Request a trial to view additional results

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