*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 93 S.Ct. at 580. action, with if the aid of administrative alleged conduct in a accord with Regarding factor, Court the first rule, in valid antitrust be court will “the although repeal noted that of the anti- position intelligent a more make lightly trust laws was to be as- judgment sensitive as to whether the an- Commodity Exchange sumed the Act appar- punish titrust laws will what an clearly contemplated membership or- ently per- valid rule ganization acqui- for standards mits.” at 583. Id. at sition, membership. retention and loss readily except that, It can petition- be seen if The Court reasoned that 71-1892, membership pursuant in antitrust claim No. er had lost his significant rule, question cases unlike Ricci in one valid the first which the respect, in is not the district court antitrust court would have decide being possibly asked reconcile rule itself was immune conflicting congressional policies from two But, antitrust attack. Rather, continued, petitioner actions acts. insofar if Ricci his lost alleged are founded violations of Ex- contravention at 582. Commodity Exchange primary jurisdiction itself, dis would mean ex- being simply jurisdiction, to do is asked clusive and no final there is trict traditionally called what been reason conclude that whatever con- involving alleged may vio to do cases flicts law arise would be acts, is, prior the securities avoided action. lations of remedy monetary compensation award argument that the Commission’s done unlawful conduct. harm expertise judges is needed and that Therefore, if private un action exists jurors would be unable to understand der the no may the issues involved be answered ju appears why discretionary reason ways.2 First, two an ad- deference to risdiction the Commission should be solely on the ministrative commission judicial proceedings, invoked lay persons basis will unable to any any more than proceedings understand the has been agency generally other need invoked by experience to shown be unwarranted. commencing damage private before ac pat- Judges juries regularly decide plaintiffs allege tion. The do not cases, compli- ent antitrust claims and rule of the Ex cated cases. There is no securities rea- violation son believe have more would laws or even the difficulty involving with factual issues They allege simply past con purchase of commodities. sale duct certain complex If issues do too become alleged members, to violate rules of the average juror, special *5 instructions the Exchange Exchange Commodity and the special aid of a master can utilized. be monetary injury caused them primarily Secondly, the issue is damages. which seek agency special expertise whether an however, although argued, It such, is parts that as but “whether some conflicting policies no jurisdiction acts between two are within case the exclusive involved, primary jurisdiction agency.” are here Davis, of the Administrative 3 should Supreme nevertheless be held rest Law 19.07 at The 39 § Commodity Exchange ac- in Commission Court Ricci found Commission involved, count questions jurisdiction gain of the difficult warranted in order may require expertise beyond ruling which agency alleged that an Exchange on whether the average judge juror, in and be- action accord with Ex- possible change cause of sulting stated, however, conflicts in the re- law rules. It opinions from the of different should the find that the Ex- judges. point change rules, may ju- latter an- be action violated by noting personnel, swered pol- end, that the antitrust risdiction would and “the agen- icies and very views of likely administrative action its normal should take course, cies convincing commissions do not for- indica- remain absent more ever interpretations agency constant. congressional Conflicts in arise than tions intent present jurisdictional of law as well as within here that the Furthermore, the courts. powers Commodity there is no remedial Ex- reason to believe that more will conflicts Commission are exclusive.” 409 judicial result from (emphasis intervention in this U.S. added). 93 S.Ct. at 581 any in than area other more traditional in Inasmuch the defendants sphere judicial activity. Finally, in- the cause of action under consideration affording alleged asmuch as the Commission here are violated valid have Appellants case, raising cite Far East v. Conference that “in cases issues fact States, 570, 574, United expertise 342 U.S. within not judges the conventional requiring 96 L.Ed. 576 in which the or cases the exercise of Supreme stated, deciding discretion, Court in agencies created by Congress subject regulating Federal Maritime Board be should given passed in an antitrust matter over.” 534 manipulate or 13(b) Act to Supreme has C. Court rules, § manipulate Commodity attempt strongly indicated attempt commodity or to corner jurisdiction is Commission’s commodity. think any such We non-exclusive, corner no rea- we see limited and part intend- in is at least plaintiffs to invoke enactment require son plain- protect interests discretionary jurisdiction ed to there- actions. We tiff-traders in these Commission. private cause of action fore hold that question remains There Commodity under exists damage private are al actions plaintiffs in these Act in favor Commodity Exchange under the lowable district court actions and earlier, express provi no Act. As noted plaintiffs permitting correct The courts in the Act. sion contained the Com- under their actions maintain question, which have considered the modity however, uniformly apparently con g.,E. allegation cluded such an action exists. The issue Peavey Commodity Chicago Booth v. Co. Serv Phillips Ex- Mercantile in change ices, 1970); F.2d 132 complicated. 430 more is somewhat Shearson, Espey, Arthur Johnson v. Supreme in Ricci Court (S.D. Co., F.Supp. 764 supra, Hammill & 341 hold did N.Y.1972); Kohlmeyer & McCurnin v. district that an antitrust action Co., F.Supp. (E.D.La.1972); 340 stayed 1338 properly order court should Egg v. Bauer Int’l United Producers Com- to allow the (S.D.N.Y. Corp., F.Supp. question rule on mission to 1970); Anderson v. I. duPont & Francis ac- Co., ; F.Supp. (D.Minn.1968) with valid tions were promulgated accord Co., F.Supp. Goodman v. H. Hentz & under (N.D.Ill.1967); Bromberg, however, Securi think, Act. We (353) (1971). ties 4.6 ra Law: approach § case difference supra, Goodman, tionale was stated in Appeals Su- *6 F.Supp. at 447: emphasizes present preme how the significantly from Ricci and case differs legislative of “Violation a enact- pri- scope of that of the doctrine the doing prohibited by ment a act makes mary jurisdiction applied to Com- the the actor liable for an of the invasion Exchange by Supreme modity the Act (1) interest of another the intent if: Court in case does include the that exclusively of in the enactment is alleged present of conduct. The Court part protect the interest of oth- the Appeals al- in that facts Ricci found the individual; (2) er as an in- the leged plaintiff support his in of the terest invaded is which the one enact- charge viola- antitrust would constitute protect. ment is intended to Restate- Commodity Exchange tions of Act the ment, Torts, 286.” Section and thus could modity Com- be examined the purpose stating Commodity Exchange Commission, of the Ex- change private Act has been stated to be in- tre- “to that ble-damage of a the maintenance practice dealing sure fair and honest on suit in those circumstances commodity provide exchanges present problem the a of would coextensive might coverage a measure of control those of be over forms under two acts which speculative activity repugnant policy which too of often de- the Commodi- Exchange injury ty

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 409 U.S. at 28 L.Ed.2d S.Ct. at 584 S.Ct. J., recognized dissenting). opinions shall, the Com these ways mission could articulate complaint L. D. Deaktor exchange validly which an exercise al., & on Schreiber Co. et a class action power membership,4 over inherent allegedly behalf all traders harmed hopeful articulation would artificially prices, because inflated al- ly dispose preliminary of a leges daily the defendants exceeded reconciling task of laws trading limits, or held controlled net - with the Commodities “long” positions position in excess of any Since Act does limits, responsible manipu- and were for way give exchange a commodities prices pork belly lation futures power price Commission sanction ma July, complaint for 1970. The further nipulation, since, reasons to be alleges that below, discussed deference to adminis change was or should have been aware expertise defining trative is not vital for manipulative of the activities it scope regulations governing promptly act failed to to halt these vio- complaints, the issues raised I do lations rules. All defend- compels not believe that Ricci deference allegations. ants’ answers these denied to administrative arguments complaints From the cases. these appeal, appears is- essential adjudicated usually sues which have must are Courts invoked doc- quanti- they primary jurisdiction whether had set trine of where trading belly pork fu- limits have determined tative issues raised tures, expertise unique whether defendants exceeded within the of ad- limits, agencies, whether the defendants’ ministrative where the issues conduct caused fluc- unreasonable discretion, involve exchange tuations, uniformity and whether where the desire for would reaching many knew or should have known about be frustrated courts conduct and should defendants inconsistent decisions. United States stop Philadelphia acted it. think I do not Bank, National 374 U.S. exchange 4. An examination Some factual issues which Appeals found relevant which the Court of identified for deference to the Com- questions had little relevance indicates that mission were whether My questions membership sus- involved. the factual Ricci’s had been transferred picion believed deference is that the Court to another Ricci had before revoked authorization; to determine allow the Commission transfer would whether valid; rules sanctioned unwritten whether transfer authorization transfer, prohibited party who ordered the transfer had so; power n. at 579 to do party ordering n. 11. the transfer was indebted appear to Ricci. All issues questions simple of fact. 409 U.S. at 305 *9 15, n. 93 at 15. 582 n. 538 effects flowed and harmful discre- whether court abused district again, I do not action. Once determining do from their these issues tion judge his abused the trial application of adminis- believe that require finding they issues within these involve fac- discretion expertise, for trative competence of court.5 his the tradition- within tual determinations juries. competence of al nature of the unobtrusive Given Phillips complaint v. The cases, in these I doubt facts Exchange, action a class whether deference to Commission lost brought all traders who on behalf of substantially resolu would to their add eggs money contracts fresh futures per a do not involve tion. These facts con- allegedly defendants’ because regulatory scheme, vasive United States duct, alleges violated defendants America, Corporation v. 358 Radio Com- laws the antitrust 334, 350, both 457, L.Ed.2d 79 S.Ct. 3 U.S. artificially de- Act modities (1959), 354 or matters within adminis egg price for futures pressing Ry. discretion, Northern trative Great advantage. complaint al- their own 285, Co., 259 Merchants’ Elevator acting defendants, leges 294, 477, 66 L.Ed. 943 through Commit- Conduct the Business unique but rather set facts concern Chicago Mercantile tee may ing never re situations which buy to holding parties contracts ordered peated. main issue common to all eggs liquidate of these fresh appeals- manipula e., 50% whether a —i. parties giving contracts without prices tion of one which occurred —is liquida- giving hearing without judiciary just has considered itself proper As dissemination. tion order competent as as Ex the Commodities eggs consequence, driv- pass upon. Since the defendants to enable en downward “manipulation” undefined in the term egg purchase to ex- contracts sufficient appeal given Act, it courts of have economically from the themselves tricate meaning ap on direct the cases taken position they in be- undesirable peal from Commission determinations. activity. illegal com- their fore Freeman, Volkart Brothers Inc. v. alleges plaint defend- further (5th 1962), 52, F.2d Cir. General activity rules of in violation of ants’ Corp. Brannan, Foods F.2d exchange relating to hear- 1948). Although com 223-224 ings emergency action, constituted argued judicial mentators have manipulation of false the circulation interpretation “manipulation” prohibited information Congress circuit, varied from circuit conspiracy illegal in re- and was statutory has declined substitute The defendants straint trade. definition of that term the sake of allegations. Thus, denied all these Regu uniformity. Vogelson, Tightened key issues are defendants whether Commodity Exchanges, lation alleged, conspiratorial purpose had the (1969).6 short, way alleged, they A.B.A.J. In acted ganization government questionable the ex It the Com-

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