Timetrust v. SECURITIES AND EXCHANGE COM'N, 9823.

• Decision Date: 08 May 1944
• Docket Number: No. 9823.,9823.
• Citation: 142 F.2d 744
• Parties: TIMETRUST, Inc., et al. v. SECURITIES AND EXCHANGE COMMISSION.
• Court: U.S. Court of Appeals — Ninth Circuit

142 F.2d 744 (1944)

TIMETRUST, Inc., et al. v. SECURITIES AND EXCHANGE COMMISSION.

No. 9823.

Circuit Court of Appeals, Ninth Circuit.

May 8, 1944.

Keyes & Erskine and Louis Ferrari, all of San Francisco, Cal., for appellants Bank of America and L. M. Giannini.

Dreher, McClellan & McCarthy, of San Francisco, Cal., for appellant A. P. Giannini.

John L. McNab, of San Francisco, Cal., for appellant John M. Grant.

Bacigalupi, Elkus & Salinger and Claude N. Rosenberg, all of San Francisco, Cal., and Gumpert & Mazzera and Harry A. Mazzera, all of Stockton, Cal., for appellants Timetrust, Parker, Wood and Blanchett.

John F. Davis, Sol., and J. Leonard Townsend, Sp. Asst. Sol., both of Philadelphia, Pa. (Douglas M. Orr, of Philadelphia, Pa., of counsel), for appellee.

Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.

WILBUR, Circuit Judge.

This case was brought by the Securities and Exchange Commission to enjoin the operation of a plan devised for the purpose of selling the capital stock of the Bank of America National Trust and Savings Association. On July 31, 1942 this court filed an opinion and order remanding the cause for specific finding of fact as to whether or not the defendants, or any of them, devised a fraudulent scheme such as denounced by the statute. 9 Cir., 130 F.2d 214, 220. The reason for this order was pointed out in the opinion. In the course of the opinion the court said:

"* * * there is conflicting evidence on the issue of fact, upon which the required finding is to be made, from which the court may draw inferences for or against a finding of the fraud which the district judge has stated as a conclusion of law. The responsibility for a decision on the facts lies with the trial court and we do not wish to in any wise interfere with such decision."

The court also said: "It is evident that those concerned with the plan might well consist of those who honestly approved an honest plan and those who took advantage of the plan to commit fraud in its operation."

Attention was also called to the fact that the salesmen who were charged with the fraudulent practices were not parties to the action. The opinion stated: "It should be observed that the actual perpetrators of the fraud, the forty or fifty salesmen, are not parties here, and that the question is as to whether or not the defendants launched a fraudulent scheme. We are of the opinion that the case should be remanded to the trial court for a specific finding of fact as to whether or not the defendants, or any of them, devised a fraudulent scheme such as is denounced by the statute."

In pursuance of the order remanding the case for further findings the court entered such a finding holding that all the defendants were guilty of the fraudulent practices alleged and returned the proceedings to this court for further action.

One of the principal questions argued by the defendants is whether the evidence supports the findings as made. The appellee contends that this question is foreclosed by the opinion of the court upon which the order remanding the case is based. We do not agree with this contention. If this court had decided the case on the record that was before it and had held that the evidence was not sufficient to sustain the finding and had then remanded the case for a new trial, the decision that the evidence adduced upon the first trial was insufficient to support a finding of fraud would constitute the law of the case upon the second appeal. But the court did not take such a course for the reason that it wished to consider the case after the trial court had performed its function of finding the facts. We therefore find no obstacle to a consideration of the appeal upon the present record upon the merits.

It is unnecessary to make an elaborate statement of the case because the reference to the court's previous opinion will sufficiently indicate the main facts. As there pointed out, the plan under consideration was devised for the purpose of selling shares in the Bank of America National Trust and Savings Association in such a way that the purchaser would pay a certain amount each month for a period of ten years and each payment was to be used to purchase such bank stock at the current market price. All the defendants participated in greater or less degree in the adoption of the plan as indicated for the sale of the bank stock. Timetrust, Incorporated, was organized and incorporated for the purpose of conducting a sales campaign, the...