165 F.2d 294 | 2d Cir. | 1947
Lead Opinion
Judge Bright’s refusal of the substantial costs bond provided for corporations in shareholders’ derivative actions by the state
Petition denied.
Concurrence Opinion
(concurring).
I concur in the result but I reach it by another road.
The avowed purpose of the New York statute is this: Should plaintiffs, in a case like this, after a trial, lose on the merits, the defendant corporation, which will then be obligated to pay its officers their expenses incurred in the defense of the suit, is to be able to collect those expenses by recourse to the security given by plaintiffs. Our previous rejection (from which I dissented) of the appeal from the district court’s order refusing to require plaintiffs to give that security, plus a rejection, not on the merits, of the present mandamus petition, may, then, have this unfortunate result: If plaintiffs, having lost the suit, should fail to appeal (perhaps because they consider their case hopeless), then, if the New York statute binds the federal courts, the defendant company, which will not be able to collect the expenses for which it will be obligated to its officers, will suffer an irreparable loss through an unreviewable erroneous order of the district court.
Therefore, as we have rejected the appeal from that order, I think we should now consider on the merits the issue presented by the petition. I have done so. I think we should deny the petition on the ground that Judge Bright’s order was correct because, as he held, the New York statute is “procedural” so far as the federal courts are concerned. I agree sub