WESTINGHOUSE ELECTRIC CORPORATION et al., Appellants,
v.
CITY OF BURLINGTON, VERMONT, et al., Appellees.
GENERAL ELECTRIC COMPANY et al., Appellants,
v.
CITY OF ALBEMARLE, NORTH CAROLINA, Appellee.
WESTINGHOUSE ELECTRIC CORPORATION et al., Appellants,
v.
PUERTO RICO WATER RESOURCES AUTHORITY, Appellee.
WESTINGHOUSE ELECTRIC CORPORATION et al., Appellants,
v.
DISTRICT OF COLUMBIA, Appellee.
Nos. 17747, 17931-17933.
Unitеd States Court of Appeals District of Columbia Circuit.
Argued Oct. 25, 1963.
Decided Jan. 2, 1964.
Mr. Robert C. Barnard, Washington, D.C., with whom Mr. John K. Mallоry, Jr., Washington, D.C., was on the brief for appellant Allis-Chalmers Mfg. Co. and certain other aрpellants, argued for all appellants.
Mr. Elmer F. Bennett, Washington, D.C., with whom Mr. David Booth Beers, Washington, D.C., was on the brief for appellee City of Burlington, Vt., argued for all appеllees.
Messrs. Leonard J. Emmerglick and Ellis Lyons, Washington, D.C., were on the brief for appellant Westinghouse Electric Corp.
Messrs. Francis M. Shea, Richard T. Conway, William H. Dempsey, Jr., and Clark M. Clifford, Washington, D.C., were on the brief for appellant General Electric Co.
Mr. Ezekiеl G. Stoddard, Washington, D.C., was on the brief for appellant Carrier Corp., in No. 17,747.
Mr. J. Carter McKаig, Washington, D.C., was on the brief for appellant Worthington Corp., in No. 17,747.
Messrs. Charles S. Rhyne, Bricе W. Rhyne and Anthony Joseph, Washington, D.C., were on the brief for appellee in No. 17,931.
Messrs. Rоbert E. Sher and James H. Heller, Washington, D.C., were on the brief for appellee in No. 17,932.
Messrs. Chester H. Gray, Corp. Counsel for District of Clumbia, and John A. Earnest and James M. Cashman, Asst. Corp. Cоunsel, were on the brief for appellee in No. 17,933.
Mr. Ephraim Jacobs, Washington, D.C., entеred an appearance for appellant Federal Pacific Elеctric Co., in No. 17,747.
Messrs. Ralph S. Cunningham, Jr., and Earl W. Kintner, Washington, D.C., entered appearanсes for appellant Duncan Electric Co., Inc., in No. 17,747.
Mr. Robert D. Larsen, Washington, D.C., entered an appearance for appellants Ward Electric Co. and Arrоw-Hart & Hegeman Electric Co., in No. 17,747.
Messrs. Charles L. Saunders, Jr., and Willis B. Snell, Washington, D.C., entered appearances for appellants Southern States Inc., Kuhlman Electric Co., and A. B. Chance Co., in No. 17,747.
Mr. Richard A. Whiting, Washington, D.C., entered an appearance for appellant I-T-E Circuit Breaker Co., in No. 17,747.
Mr. John S. Walker, Washington, D.C., entered an appearance for appellant Clark Controller Co., in No. 17,747.
Mr. Bartholomew A. Diggins, Washington, D.C., entered an appearance for appellant H. K. Porter Co., Inc., in No. 17,747.
Mr. Arthur B. Edgeworth, Washington, D.C., entered an аppearance for appellants Allen-Bradley Company, Cutler-Hammer Cоmpany and Square D Company, in No. 17,747.
Before BAZELON, Chief Judge, and BURGER and WRIGHT, Circuit judges.
PER CURIAM:
The issue urged1 by appellants has alredy been litigated unsuccessfully in related suits before the Courts of Appeals for the Second,2 Seventh,3 Eighth,4 and Tenth5 Circuits. Petitions for certiorari were denied three times by the Suprеme Court.6 The matter is under submission in the Fifth7 and Ninth8 Circuits. The Third Circuit has denied leave to take an interlocutory appеal.9 Under the circumstances, we wonder whether the issue can really be said to be still open for adjudication. If it is, we would adopt the reasons stated10 by Chief Judge Lumbard for the Second Circuit, en banc, and affirm the order of the District Court.
Affirmed.
BURGER, Circuit Judge (concurring specially):
The holdings of the Eighth1 and Second2 Circuits on this point seеm to rely considerably on the legislative history of Section 5(b), but in common with Circuit Judge Breitеnstein in his opinion for the Tenth Circuit3 and Chief Judge Hastings for the Seventh Circuit,4 I find the legislative history 'interesting but not decisive of the issue.' At best, the legislative history suggests to me that different members of the key Committees of the Congrеss had different ideas as to the state of the existing law and as to the impact of the amendment on limitations. Certainly some members of Congress thought they were accomplishing the result usually sought by the framers of statutes of limitations-- the cutting off of stale claims. However, I would not read Justice Frankfurter's opinion in the Holmberg case as contrоlling. Although cases involving conspiracy to fix prices or to engage in monopоlistic practices have elements in common with fraud, they are not fraud cases in the sense of the situations dealt with in Bailey v. Glover, its progeny, and Holmberg v. Armbrecht, suprа, majority opinion.
I concur in our holding with considerable reservation and on the assumption that at some stage the Supreme Court must re-examine the problem and resolve it.
Notes
The question presented is whether the statute of limitations set forth in Sections 4B and 5(b) of the Clayton Act, 38 Stat. 731, 69 Stat. 283, 15 U.S.C. 15b, 16(b), is tolled because of 'fraudulent concealment.' Sеe Bailey v. Glover,
Atlantic City Electric Co. v. General Electric Co., 2 Cir.,
Allis-Chalmers Mfg. Co. v. Commonwealth Edison Co., 7 Cir.,
Kansas City, Missouri v. Federal Pacific Electric Co., 8 Cir.,
Public Service Co. of New Mexico v. General Electric Co., 10 Cir.,
See Notes 2, 4 and 5, supra
City of San Antonio v. General Electric Co., W.D.Tex., Civ. No. 3063 (December 7, 1962), appeal pending, 5 Cir
Department of Water & Power v. Allis-Chalmers Mfg. Co., S.D.Cal.,
United States v. General Electric Company, E.D.Pa.,
See Note 2, supra
Kansas City, Missouri v. Federal Pacific Electric Co.,
Atlantic City Electric Co. v. General Electric Co.,
Public Service Co. of New Mexico v. General Electric Co.,
Allis Chalmers Mfg. Co. v. General Electric Co.,