*1 remaining attempts enter the con- to make additional We have considered the regain appellant plant needed and find control of the tentions of the them persuasive judgment to be The records and documents is without merit. light testimony concerning vio- District is affirmed. every virtually employee lence directed company attempted to cross who picket company line. cannot be The having
held at- to be liable failed to gain
tempt plant access to under its anything, existing If circumstances. prevent approach cautious served
additional violence attendant addi- damage.
tional binding Evidence indicated that orders Darryl DEAKTOR, B. Plaintiff- 386,774 plant were received Appellee, tights, dozen fishnet or- most which shipped. ders were not able to be al., L. D. SCHREIBER & et CO. company plants established that other Defendants-Appellants. in the area have finished or PHILLIPS, Jr., Al al., et Plaintiffs- shipped goods, Day- because Appellees, plant company ton only plant was the equipped fabricate, dye, which was The CHICAGO MERCANTILE EX package goods. ship fishnet Tes- al., et CHANGE Defendants- timony Kay- also showed that the other Appellants. plants already engaged ser-Roth capacity production of other dif- 71-1890, 71-1892, Nos. 71-1893. types ferent hosiery. Appeals, United States Court of Seventh Circuit. appeals The union also from the District Argued Court’s dismissal itsof coun Feb. 1973. terclaim, asserting company that the had May 21, Decided 1973. conspired subject the union to vexa Rehearing Rehearing En Banc tious improper suits and that Denied June company sought perjured procure had testimony through bribery. threats conspiracy claim from re stems ward offer company which the made at height against of the violent attacks non-striking employees, which ais legitimate obtaining method of aid in apprehension of criminals and which
cannot inciting litiga be considered as
tion. perjury action is based
the assertion company’smanager sought employees to induce testify falsely. However, the evidence showed employees approached the manager recording armed with hidden devices, attempted pro to solicit a
posal from might him which tend to in They
criminate him. were not success ful, and the District dismissal of Court’s the union’s counterclaims will not be
disturbed. *2 ing the exercise Commis-
sion.
plaintiff
Darryl
Deaktor,
in Nos.
B.
brought
71-1893,
class ac-
71-1890
Judge,
Castle,
con-
Circuit
Senior
against
Chicago
Mercantile
tion
opinion.
filed
curred and
the Ex-
members of
and various
change alleging
mem-
defendant
July,
manipulated
cornered
bers
pork
con-
futures
bellies
frozen
up
price
forcing
market,
tracts
traders,
injuring
contracts and
those
plaintiff,
short and
who sold
such as the
positions
liquidated
their
had
manipulation and thus
the defendants’
positions
required to
their
cover
purchase
inflated
of contracts
alleged
prices.
was
to be
This conduct
seq.
in
Commodity
of 7 U.S.C.
et
violation
§
The Ex-
ground
of fail-
sued on the
care
com-
to exercise reasonable
7a(8),
pliance
and thus
with 7 U.S.C. §
failing
promptly
and to
be aware of
the de-
halt the unlawful activities
defendants
fendants.
member
Various
Chicago Mercantile
proceedings
stay
on the
for
moved
ground
plaintiff
first be re-
quired to
relief from
Commodi-
seek
ty Exchange
The district
Commission.
August
judge
motions on
denied these
1971,
he certi-
1971. On October
appeal
interlocutory
fied this order for
1292(b).
under 28 U.S.C. §
plaintiffs
71-1892,
in No.
Al
twenty-four
Phillips, Jr.,
al., are
trad
et
Conlon,
Mulroy, John L.
Thomas R.
Chicago
Ex
ers who sued the
Mercantile
Salzman,
Freeman,
A.
E.
Jerrold
Lee
change,
mem
officers and
certain
defendants-appellants.
Chicago, III., for
Committee,
bers of its Business Conduct
Pa.,
Fine, Philadelphia,
M.
Aaron
monopoliz
charging
with
the defendants
Bickner, Chicago,
Joseph,
P.
Jack
Bruce
eggs,
March,
ing trading in
fresh
111., plaintiffs-appellees.
forcing
causing
fall and
CASTLE,
Circuit
Before
Senior
depressed
artificially
market
sales at
SPRECHER,
Judge,
Cir-
and PELL and
alleged
prices.
vio
This conduct
Judges.
hearing
cuit
provisions in
the notice
late
217(D) of the Rules of the
Rule
SPRECHER,
Judge.
Circuit
7a(8)
Exchange, U.S.C.
§§
13(b) of the
appeals
interlocutory
are from
These
the Sher
1 and
denying
sections
mo-
district court
orders
stay
motion
Act. Defendants’
man
tions
defendant
by the
proceedings
dis
was denied
defendants
and various other
September
This
pend-
stay
trict court on
action in the district court
interlocutory
gate
accepted
appeals in
the transactions and financial con-
members,
dition of
them.
to examine their
cases and consolidated
books,
prescribe capital requirements,
appeals is
sole issue
orders,
and to
cease
and desist
aft-
ju
take
court could
district
hearing,
er
notice
found
members
actions or
risdiction of these
engaging
conduct which is “un-
Commodity Exchange Commission
unjust.”
*3
or
fair
primary jurisdiction
properly
over
has
private remedy
specific
No
for viola-
defendants-ap
proceedings. The
provisions
provided.
of
tions
is
pellants
is decid
contend that
felony
The
make
Act does
it a
Chicago
favor, by
ed, in their
Ricci v.
Exchange,
289, 93
409 U.S.
mercantile
any
manipulate
person
“for
to
or at-
L.Ed.2d
We
S.Ct.
tempt manipulate
price
any
to
of
that Ricci does not con
concluded
commerce,
commodity in interstate
trol
the district
these cases and that
attempt
toor
corner or
to
refusing
stay
correct in
any
commodity,
corner
or know-
such
pri
proceedings
of
to allow
exercise
Commodity
ingly to
.
deliver
.
.
false or
mary
jurisdiction by the
Ex
misleading
knowingly
or
inaccurate
change Commission.
concerning
reports
crop or
in-
market
Chicago
Exchange
a
Mercantile
is
formation or conditions
affect or
designated
of
board
trade
as a “contract
any
tend to
of
com-
affect the
by
Secretary Agriculture
of
market”
modity in interstate commerce.” 7
Designation
pursuant
to 7 U.S.C.
13(b).
§
U.S.C. §
required
as a contract market is
before
provisions
Secretary
Other
authorize the
trading in contract futures can be con-
Agriculture
Commodity
of
qualify
In order
a
ducted.
con- change
preventive
Commission to take
market,
tract
Mercantile
Thus,
and remedial action.
U.S.C. §
required
with the
to file
Commission,
authorizes the
notice
after
regulations
Secretary
rules,
by-
its
hearing,
including
laws,
prevention
rules “for
suspend
period
“to
for a
to exceed
manipulation
prices
of
of
and the cor-
designa-
six months
toor
revoke the
nering
any commodity by
of
the dealers
any
tion of
board of
trade as
‘con-
operators upon
or
such board.” 7 U.S.C.
showing
tract market’
§7(d).
required
It was
enforcing
such
of
board
trade is
bylaws,
regulations,
rules,
“enforce all
gov-
or has not enforced its rules of
resolutions,
made or issued
ernment
or
...
board
such
governing
or
board thereof or
any
officer,
trade,
director,
or
any committee, which relate to terms
employee
agent,
thereof,
or
otherwise
and conditions in
contracts
sale to
violating
any
is
or
violated
of the
subject
executed
or
to the rules
provisions
any
Act or
this
of such contract market or relate to
rules, regulations,
or orders
trading requirements,
other
and which
Agriculture
Secretary of
or
Com-
disapproved by
have not been
the Sec-
mission thereunder.”
Agriculture
retary of
.
.
.
.”7
Provision is also made for the Com-
7a(8).
U.S.C. §
mission to enter cease and desist orders
requirement,
against
Pursuant
this
any
market, director,
Chica-
contract
go
217(C)
agent
officer,
Rule
employee
who violates
provided
any
provision
the Business Conduct
of the Act or rules there-
charged
duty
Committee be
obey
with the
under. Failure to
the order is de-
authority
prevent manipulation
clared to be a misdemeanor. 7 U.S.C. §
prices
cornering
any
Secretary
Agriculture
commod- 13a. The
ity.
gives
217(D)
Rule
disapprove any
the Business
bylaw,
authorized authority
Conduct
rule, regulation
Committee
to investi-
or resolution
issued
rules,
action
antitrust
re-
“the
proposed
market which
contract
course,
very likely take its normal
in con-
conditions
lates
terms
compelling
indications
absent more
vio-
finds that
it will
if
tracts
sale
he
present
congressional
intent
than are
provisions
Act or
late
jurisdictional
and remedial
12a(7).
here
rules thereunder.
7 U.S.C. §
powers of
Supreme
considered
Court
Id. at
exclusive.”
of an
statutory
context
scheme
at 581.
conspiracy
alleging
suit
underly-
Looking
factor
the second
an Ex-
in the transfer
restrain trade
Court,
decision,
ex-
while
in Ricci v.
ju-
declining finally
decide the
supra.
pressly
Court
question,
noted that
risdictional
there
in the circumstances
decided that
Appeals
had found
presented,
*4
membership
given
opportu-
were
rules
an
Commission should be
“trading
requirements”
and
prior
to
nity
jurisdiction
to con-
related
to exercise
among
the
which
“were
those
tinuing
proceeding
the antitrust
thus
in
the
Exchange
ignore
vio-
not
without
Although recognizing
the
could
that
court.
lating
bringing
within
the
and
itself
Act
decide
to refuse
Commission
jurisdiction
to
majority
of the Commission”
jurisdiction,1
Ricci
the
the
and
remedy any
the statute
violation of
three
the combination of
Court
that
felt
underlying
outweighed
Id.
present
rules.
in that
factors
case
uncertainty.
Those factors
prior
a
that
The Court also decided
(1)
the
“essential
that
it would be
for
Commodity
by
determination
the
determine whether
Antitrust Court
to
material
would be of
Commission
Exchange
any
Commodity
of
Act or
the
resolving
immunity question
aid in
the
‘incompatible
provisions
the
its
with
are
in
first
in-
because the
turned
the
action,’
of
antitrust
maintenance
stance on whether
loss
Ricci’s
;
(2)
that
some facets
.
rules,
Exchange
membership violated the
Exchange
dispute between Ricci and the
in turn involved
fact and
which
issues of
statutory jurisdiction
within
sig-
[were]
questions
scope
concerning the
and
Commodity
Commis-
mat-
nificance of the
These were
rules.
sion;
(3)
adjudication
that
and
that
thought
ters which the
could best
Court
dispute by
promise [d]
the Commission
by
especially
dealt with
famil-
be
those
resolving the
to be of
in
material
aid
practices of
iar with the customs and
immunity question.”
409 U.S. at
industry.
that
concluded
Court
moralize markets to of 447 F.2d Act. producers 1971). Supreme Court, and consumers and in con- the ex- changes Campbell, trast, Commodity themselves.” held that if the Ex- “Trad- ing Commodity in Futures Under the found a violation Exchange Act,” rules, inquiry end valid Geo.Wash.L.Rev. proceed felony It is the antitrust action should under 7 U.S. greater ity. possi- in the absence evidence therefore There would be no Exchange Commodity Action reme- ble conflict between antitrust laws Exchange Commodity exclusive. dies Act unless Commodity Exchange Act were approaches This difference deemed to be the exclusive means in- two that our Courts indicates remedying violations of the acts. two quiry particular con- must focus Supreme Ricci, however, Court, in The. decided that alleged to violate the antitrust laws duct question adversely argua- and must consider whether it is petitioners. protected by bly Ricci, argument stay- In the conduct was see no We further the transfer in the the actions the district court. appealed without The orders from are therefore permission or even notice to the affirmed. Although in owner. absence of the Affirmed. Commodity Exchange Act such conduct appeared to violation clear CASTLE, Judge (con- Circuit Senior Supreme laws, Court held curring). possibility applicability Act limited the appeal The issue on this is whether of the antitrust laws in that was case the district court abused its discretion “substantial.” reason this refusing to defer the issues raised Congress had declared that to deal complaints the various to the commodity one re- futures at all Secretary Agricul- quired through to be or deal a member or the ture Commodities Com- designated of a board of trade. “The discretion, mission. I find no abuse clearly contemplates membership Act I but believe that resolution of this organization and hence the existence majority difficult issue more than the acquisition, criteria for transfer opinion indicates. membership.” loss 409 U.S. at My understanding majority 581. The Court noted that opinion the promulgated is that had is not deference warrant- alleges plaintiff when only ed such rules and was under statutory duty provisions violated enforce them defendants have trading (the the extent requirements. were related to Commodities Act) regulations 7a(8). validity In he U.S.C. whose § challenge. alleged contrast, Respectfully, conduct does I be- present way approach arguably pro- case is no lieve is too mechani- *7 guidance Chicago beyond cases,1 of cal for tected rules Mer- and perhaps sufficiently appreciative cantile change or the of problems fact, expressly In the Act raised Ricci v. prohibits Exchange, manipulation commodity 289, of 409 93 U.S. prices 573, cornering (1973). and the commod- S.Ct. 34 L.Ed.2d For 525 support (1915), McCleneghan 1. There is for the view that defer 867 Union v. Stock juris (8th Co., 659, ence administrative Yards F.2d 668 Cir. 298 necessary only 1962). diction is not when As was noted Crain v. Blue party Stockyards Co., 868, are issues whether a has F.2d violated a Grass 399 874 regulation 1968) statute valid and whether : . does not .it activity clearly consequently require expertise his administrative unlaw detei- plaintiff ful. Carnation Conference, v. mine Co. Pacific Westbound whether violated rules and 213, 222, regulations whether-, because of such 383 U.S. 86 S.Ct. and 781, Pennsylvania right (1966), violation, 15 709 L.Ed.2d had the to and defendants ” Mining Co., plaintiff. R.R. Puritan Coal did exclude . . . 237 121, 131-132, 484, 35 U.S. S.Ct. 59 L.Ed. 536 In that case argued Commission. ties appellants have
the question Ricci, plaintiffs-appel- plaintiff like violated whether have alleged only eases, exchange regula- in the instant lees valid the Act and/or exchange had been the Act and precisely one administrative tions is 289, at S.Ct. 93 409 violated. are eases three Since all determination. uncertainty Despite whether market 574. intricately the issue related adjudi- urge the Ricci obtain administrative appellants manipulation, complaint, held of his the Court cation condi- market of relevant determinations tions, fluctuations, make the must existence valid legality first determination of whether advisability of their and and the regulations had violated: been activity require of adminis- the exercise deferring expertise. Only after trative the transfer of That issue [of expertise to the administrative membership in violation of Ricci’s Secretary Commission, appellants or the exchange the Act to follow failure adequately contend, deter- court can a pose appears in turn issues rules] been there has indeed mine whether questions fact, scope, and about the regulations violation promulgated pursuant the Act or exchange meaning significance of it. These are matters rules. with the first argument dealt certainly Appellants’ finds especially familiar instance those past support cases com which have practices of with the customs and ad deference in to allow manded order industry marketplace unique agencies prelimi ministrative make They involved in ease. are mat- nary investigations this comprehensive lying typically heart of ters at the analyses ap of the facts involved agency’s task here ply statutory them to a Port scheme. they appear to matters which Con- Boston Marine iaktiebolaget v. Reder Terminal Assn. gress placed jurisdic- within the 62, Transatlantic, 400 U.S. 68, tion of the Commodities (1970), 203, 203 S.Ct. L.Ed.2d Commission. Federal Maritime Board v. Isbrandtsen Co., 851, 481, 498, 2 L. 356 U.S. 78 S.Ct. (foot- 304, 409 U.S. at at 582 (1958), Ed.2d United States omitted). Appellants note and citations 64, 59, Ry., Western Pacific 352 U.S. language argued man- S.Ct. 1 L.Ed.2d dates deference of the issues applied same rationale has to the been cases Commissionalso.2 Commodities Commission’s fact-finding judge function in Ricci v. Ricci, however, In the trial had pass question 409 U.S. no occasion to 34 L.Ed.2d required where issues involved required the ad deference to deference But both Commission. judgment Appeals Supreme ministrative Commodi- the Court statutory argument supporting penalty A defer- action to enforce the is allowed. ence can also be Hearings guaranteed made. The Commodities before sus- currently pensions contains three of cease issuance *8 punishing price manipulation orders; Secretary means of desist and the can re- suspension any suspected and : other violations of a com- to refer violation fuse for exchange trading prosecution modities or member from criminal if criminal sanctions (7 9), public Here, U.S.C. 8 and §§ the issuance of would not be the interest. (§§ 13b), however, plaintiffs trying impose cease and desist orders 13a and are imposition penalties penalty monetary damages— of criminal a fourth — (§ 13; 13e(b)). subject but see also § Each stat- will not deter- which be utory penalty requires by Secretary some determination mination the that violation by Secretary imposition the that a violation of the or the of a has occurred that public penalty Act has been committed before the interest. would serve
537
recognized
very
353,
opinions
321,
nature
1715,
that
the
83
10 L.Ed.2d
S.Ct.
915
required
Accordingly,
that
Commodities
the
a trial court asked
exchange
membership
or
arguably
each
have
defer
action on a matter
ganization
acquisi
jurisdiction
and criteria
for
the
within
administrative
tion,
membership.
and loss of
these
transfer
consider
factors
and exam
308,
particular
Even
409
at
at 581.
ine the
U.S.
issues
raised
the
though
pleadings,
the factual
issues of
the case
the contribution
that
ad
simple
adjudication
quite
make,
could
been
and
and
have
ministrative
can
litigation
disposed
deferring
proceeding,3
easily
a civil
the effect
of in
that
the
litigants
will have
International Brotherhood
of Boilermak
the
involved.
Hardeman,
233,
238-239,
v.
Ricci v.
ers
U.S.
(Mar
5. is also change. S.Rep. .” . . No. even 90th Commission could modities Sess., Cong. Cong., pertain- & . 2d Admin. take over the issues U.S.Code News, pp. 1673, (1968) whether the defendants violated hearings emergency governing giving Congress, It should be also that a Commis- noted action. exchanges police appeals reviewing power sion force rules, plainly in- under the Commodities of their own determinations violations unsup power can them if not extend set aside dicated would regula- ported by weight enforcement of rules and evidence. governing 8, 9, 13a, or- This stand- §§ tions “such as those U.S.C. 13b. *10 can add much is doubtful that deference jury in of a court re-
to the work SWANSON, Faith S. Iver W. and concerning solving manipula- the issues Plaintiffs-Appellees, ap- cases; nor tion in instant does it Congress uniformity regards pear that America, UNITED STATES compelling as a consideration. Defendant-Appellant. Finally, plaintiffs the interest of the SWANSON, Plaintiff-Appellee, Iver W. in Any cases should be considered. pri
deference to administrative ap mary jurisdiction subsequent America, UNITED STATES peals from Defendant-Appellant. be administrative decisions adjudication fore district court No. 71-1474. complaints costs, their de will increase Appeals, United States Court of lay wrongs, act redress Ninth Circuit. litigation. perceive deter knotty problems I also several May 9, 1973. allowing involved agency administrative to decide issues judicial pro the heart
which at
ceeding. Assuming for the moment that
a tort one’s action interference with law, cognizable
trade was at common
plaintiffs are entitled to a of their trial jury in
actions district court.
See, Light Fleitmann v. Welsbach Street Co., L.
Ed. 5 Moore’s Federal Practice 1971). seriously (2d 38.19 Ed. I ¶ question whether a administrative of matters
determination the heart subsequently
of court, a lawsuit could bind pro
for then the administrative
ceeding deprivation of would amount to a rights.
plaintiff’s Amendment Seventh adjudication
If the were binding, I doubt it
brought jury to the attention subsequent proceeding, for it infringing
may be inadmissible province jury. Refusal to de course, prob
fer, of would avoid these
lems. judge
I find that the trial did not refusing
abuse his discretion in to defer cases, given
to the Commission in these particular reg-
the facts at issue and the
ulations I concur in involved. the re-
sult. 1953). Surely Congress ard review has been likened to a de if determination, proper regard promoting uniformity novo with interested in under credibility provided to the determinations would have for a stringent
trier of fact. Great Western Food Dis more standard review. Brannan, tributors v. 201 F.2d