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OpinionSummariesCase details
Luria Steel Trading Corp. v. Ogden Corp.
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Full title:LURIA STEEL TRADING CORPORATION AND HYMAN-MICHAELS COMPANY v. OGDEN…
Court:United States Court of Appeals, Third Circuit
Date published: Sep 6, 1973
484 F.2d 1016 (3d Cir. 1973)
United States Court of Appeals, Third Circuit
holding that FTC proceedings under § 5 tolled statute of limitations for a private cause of action under Sherman Act § 1
Summary of this case from Thompson v. 1-800 Contacts, Inc.
See 2 Summaries
Decided September 6, 1973.
Edward W. Mullinix, Schnader, Harrison, Segal Lewis, Philadelphia, Pa., for appellants.
Herbert G. Keene, Jr., Stradley, Ronon, Stevens Young, Philadelphia, Pa., H. Robert Halper, David R. Melincoff, O'Connor, Green, Thomas, Walters Kelly, Washington, D.C., for appellee.
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Before VAN DUSEN, ALDISERT, and ROSENN, Circuit Judges.
ROSENN, Circuit Judge.
Plaintiffs, scrap metal dealers, brought an antitrust suit under Section 4 of the Clayton Act by which they sought treble damages for alleged violations commencing as early as 1946 of Sections 1 and 2 of the Sherman Act and Section 7 of the Clayton Act. Defendants sought by a motion for summary judgment to bar all claims for damages accrued before October 10, 1965, due to the running of the statute of limitations. The opinion and order of the United States District Court for the Eastern District of Pennsylvania, 336 F. Supp. 1238, rejected in general defendants-appellants' motion and barred only damage claims accrued before January 1, 1952. The appeal challenges the district court's disposition of that motion. We affirm.
The district court certified on January 31, 1972, that its opinion and order involved a controlling question of law as to which there is substantial ground for difference of opinion. A panel of this court granted permission to appeal this interlocutory order on February 29, 1972. (J. Aldisert dissenting.)
Plaintiffs-appellees, Luria Steel Trading Corporation and Hyman-Michaels Company ("Luria"), filed a complaint in the district court on October 10, 1969, alleging violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and Sections 3 and 7 of the Clayton Act, 15 U.S.C. §§ 14 and 18. Defendants-appellants, the Ogden Corporation, three of its subsidiaries, and William J. Luria, moved for summary judgment barring all damages accrued more than four years before filing of the suit on the basis of the applicable four year statute of limitations provided by Section 4B of the Clayton Act, 15 U.S.C. § 15b. In opposing the motion, Luria relied on Section 5(b) of the Clayton Act, 15 U.S.C. § 16(b), which suspends the running of the statute during the pendency of "any civil or criminal proceeding . . . instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws . . . and for one year thereafter." Luria contended a Federal Trade Commission (F.T.C.) proceeding, pending from January 19, 1954, to October 14, 1968, suspended the running of the statute on the claims for which suit was begun October 10, 1969.
15 U.S.C. § 16(b) reads in full:
Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.
The Federal Trade Commission initiated proceedings on January 19, 1954, against scrap metal dealer and broker Luria Brothers Company for violations of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, and Section 7 of the Clayton Act, 15 U.S.C. § 18. Two years later Luria Brothers was purchased by the defendant, Ogden Corporation. By stipulation, on March 9, 1956, the purchasing Ogden subsidiary, Luria Brothers Co., Inc., was added as a respondent to the F.T.C. proceeding. The Commission found violations of F.T.C. Act § 5 and Clayton Act § 7 in 1962, Luria Brothers and Co., 62 F.T.C. 243 (1962); and this court affirmed, Luria Brothers Co. v. Federal Trade Commission, 389 F.2d 847 (3d Cir. 1968). Luria Brothers was found to have violated F.T.C. Act § 5 by entering agreements with various steel mills which restrained trade and tended to create a monopoly and to have violated Clayton Act § 7 by acquisition of a competitor. 389 F.2d at 852. Luria Brothers appealed this court's finding of a violation of F.T.C. Act § 5, but not the finding of a violation of Clayton Act § 7. Certiorari was denied on October 14, 1968. 393 U.S. 829, 89 S.Ct. 94, 21 L.Ed. 2d 100 (1968).
The current appellee in this suit, Luria Steel Trading Company is in no way affiliated with Luria Brothers Company, the corporation investigated by the F.T.C.
The district court opinion in the present case, relying on this court's opinion in New Jersey Wood Finishing Co. v. Minnesota Mining Manufacturing Co., 332 F.2d 346, 359 (3d Cir. 1964), aff'd, 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965), determined that F.T.C. proceedings to enforce the F.T.C. Act cannot toll the statute of limitations, but F.T.C. proceedings to enforce the Clayton Act may. It therefore found the 1954 F.T.C. proceeding against Luria Brothers, in alleging Clayton Act § 7 violations, tolled the statute of limitations. It further held the statute was tolled until October 14, 1968, the date when certiorari was denied, even though only the F.T.C. Act violation was appealed from our decision.
Defendants do not challenge the district court's determination that the statute was tolled until certiorari was denied, and not just until May 28, 1968, which was 90 days after filing of the Third Circuit opinion, and thus the final date on which appeal of the Clayton Act finding was possible. The district court reasoned "that once an FTC proceeding to enforce Clayton Act Section 7 has been instituted, the statute of limitations is tolled until the proceeding is finalized and not merely until the Clayton Act aspects are finalized."
In determining on what date the statute was originally tolled, the district court reasoned that F.T.C. proceedings could not have such an effect until January 1, 1956, the date on which various amendments to Section 5 of the Clayton Act became effective. The court thus barred all claims for damages accrued before January 1, 1952, four years before the statute was tolled. The district court refused to find the statute tolled on any other date for any of the named defendants on the grounds advanced that individuals cannot be sued under the Clayton Act or that the named corporate defendants were not in the scrap metal business when the F.T.C. proceeding began.
The 1955 amendment to Clayton Act § 5 actually became effective on January 7, 1956, six months after its July 7, 1955, enactment. It changed the language "any suit or proceeding in equity or criminal prosecution" to its present form of "any civil or criminal proceeding." The district court reasoned that an F. T.C. proceeding would not have tolled the statute of limitations before the amendment because the proceeding did not conform to the pre-amendment language, but that F.T.C. proceedings did conform to the post-amendment language and thus tolled the statute even for proceedings instituted prior to the amendment's enactment. It, however, held that the statute was not tolled retroactively as of the date the F.T.C. proceeding began; but, rather, that the statute was tolled as of the date the amendment became effective.
Defendants contend that the district court order cannot be sustained, because (1) as held by the district court, F.T.C. proceedings to enforce the F.T.C. Act do not suspend the running of the statute of limitations; and (2) contrary to the holding of the district court, F.T.C. proceedings begun in 1954 to enforce violations of the Clayton Act could not suspend the running of the statute. In support of the second contention, appellants rely on this court's opinion in New Jersey Wood, supra, 332 F.2d at 348. They note that until 1959, when the Finality Act was passed by Congress, 73 Stat. 243 (1959), 15 U.S.C. § 21, Commission orders based on Clayton Act violations were not enforceable until approved by a court of appeals. They argue that before 1959, F.T.C. proceedings were therefore not "civil or criminal proceeding[s]" which under Section 5(b) of the Clayton Act suspended the running of the statute of limitations. And, they argue that passage of the Finality Act of 1959 did not transform proceedings begun before that time into "civil or criminal proceedings." Federal Trade Commission v. Jantzen, Inc., 386 U.S. 228, 87 S.Ct. 998, 18 L.Ed.2d 11 (1967).
Plaintiffs contend that the statute was tolled in 1954 on the basis either (1) that F.T.C. proceedings to enforce the F.T.C. Act tolled the statute, or (2) F.T.C. proceedings to enforce the Clayton Act tolled the statute.
Consideration of whether the statute of limitations was tolled in 1954 by reason of the F.T.C.'s proceeding to enforce either F.T.C. Act § 5 or Clayton Act § 7 must begin with the Supreme Court's opinion in Minnesota Mining Manufacturing Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965). The holding of New Jersey Wood was that an F.T.C. proceeding begun in 1960, alleging violations of Clayton Act § 7, tolled the statute of limitations pursuant to Clayton Act § 5(b). The holding in New Jersey Wood does not necessarily control the present case because it did not deal with F.T.C. proceedings brought to enforce violations of the F.T.C. Act, nor did it deal with F.T.C. proceedings brought to enforce violations of the Clayton Act before 1959, i. e., before passage of the Finality Act.
The Supreme Court opinion, nonetheless, sheds light on the question whether F.T.C. proceedings to enforce the F.T.C. Act can toll the statute. The Court did not hint in any way that F.T.C. proceedings under the F.T.C. Act had any different tolling effect than those pursuant to the Clayton Act. The Court interpreted Clayton § 4B and its tolling provision in light of "the one element of congressional intention which is plain on the record — the clearly expressed desire that private parties be permitted the benefits of prior government actions." 381 U.S. at 320, 85 S.Ct. at 1478. In further determining whether the F.T.C. proceedings alleging Clayton § 7 violations in that case tolled the statute for the particular private action involved, the Court found the F.T.C. proceedings had such an effect although the F.T.C. had alleged merely that Minnesota Mining's conduct " may substantially lessen competition while the latter [New Jersey Wood] asserts activity that has actually done so." Thus, said the Court, Clayton § 4B applies because "[t]hat clause provides for tolling as long as the private claim is based `in part on any matter complained of' in the government proceedings." 381 U.S. at 323, 85 S.Ct. at 1480.
In New Jersey Wood the Supreme Court, of course, did not have to deal with the explicit claim that an F.T.C. proceeding alleging violations of F.T.C. § 5 can toll the statute. Subsequent cases in other federal courts, however, have squarely faced that issue, and have found the statute may be tolled. The Seventh Circuit held in Rader v. Balfour, 440 F.2d 469, 473 (7th Cir. 1971):
Although a supportable distinction could be drawn between an FTC proceeding authorized by the antitrust laws to deal with violations thereof and an FTC proceeding for a cease and desist order aimed against alleged conduct which involves either an existing or an incipient violation of the antitrust laws but brought under a provision of the FTC act authorizing proceedings against a broader range of conduct, we conclude that the policy factors deemed controlling in Minnesota Mining are present and controlling here as well. Therefore, we construe 15 U.S.C. § 16(b) so that an FTC proceeding brought under 15 U.S.C. § 45 [F.T.C. Act § 5] suspends the running of the statute of limitations if the proceeding is directed at alleged conduct which appears to involve an existing or incipient violation of the antitrust laws.
We agree. Accord, In re Antibiotic Antitrust Actions, 333 F. Supp. 317, 319-320 (S.D.N.Y. 1971); Lippa's Inc. v. Lenox, Inc., 305 F. Supp. 182 (D.Vt. 1969); contra, Laitram Corp. v. Deepsouth Packing Co., 279 F. Supp. 883 (E.D.La. 1968).
Defendants argue that this court rejected the reasoning of Rader and made a sharp distinction between F.T.C. proceedings to enforce the F.T.C. and Clayton Act in its opinion in New Jersey Wood, prior to the appeal to the Supreme Court. In reaching our conclusion in New Jersey Wood that F.T.C. proceedings to enforce the Clayton Act do toll the statute, this court noted that Clayton Act § 7 is an "antitrust law," while F.T.C. Act § 5 is not. 332 F.2d at 350. In further discussing the tolling statute, we emphasized the "affirmative statutory distinction between FTC proceedings under the FTC Act and under the Clayton Act." 332 F.2d at 359. It was on the basis of these comments that the district court felt constrained to hold that F.T.C. proceedings under the F.T.C. Act could not toll the statute, which speaks in terms of "proceeding[s] . . to prevent, restrain or punish violations of any of the antitrust laws." [Emphasis added.] 15 U.S.C. § 16(b).
The district court stated:
While we are impressed with the reasoning expressed in the above three cases [ Rader, In re Antibiotic, and Lippa's], we are constrained to follow the apparent distinction recognized in the New Jersey Wood case. 336 F. Supp. at 1240.
Our decision in New Jersey Wood discusses the distinction between Clayton Act violations and violations of F.T.C. Act § 5:
Purposefully left broad and generally undefined (as to what constituted an "unfair method of competition" or an "unfair practice"), Section 5 proceeded on the idea of an administrative body of experts (the FTC) which, given a flexible standard of judgment, would discover and prevent use of such practice before it worked a Sherman violation . . . .
Within this area of "unfair methods of competition", the FTC Act and the Clayton Act overlap . . . . These "unfair methods of competition" (later amended to include "unfair * * * practices"), whether prohibited specifically under the Clayton Act, or generally under the FTC Act, were to be restrained according to a congressional design.
332 F.2d at 351-352. In discussing the distinctions between Clayton and F.T.C. Act violations, however, this court was not concerned directly with whether the distinctions provided a basis for holding that F.T.C. proceedings to enforce the F.T.C. Act cannot toll the statute of limitations, while F.T.C. proceedings to enforce the Clayton Act may. We decline to pursue the dicta in New Jersey Woods to the conclusion defendants contend it must lead, namely that the distinction between F.T.C. and Clayton violations mandates differing results on the question of whether the statute is tolled.
Our reference in New Jersey Wood to the "affirmative statutory distinction" between F.T.C. proceedings to enforce the F.T.C. Act and the Clayton Act was a reference to a statutory distinction which had existed before the Finality Act of 1959 made F.T.C. orders in connection with Clayton Act violations final without court enforcement. This court discussed that distinction in connection with Clayton Act § 5(a), 15 U.S.C. § 16(a), dealing with use of F.T.C. findings of violations as prima facie evidence in private suits. We said that the rule of Proper v. John Bene and Sons, Inc., 295 F. 729 (E.D.N.Y. 1923), that F.T.C. findings of F.T.C. Act violations could not be used as prima facie evidence was not determinative of the issue of whether F.T.C. findings of Clayton Act violations could be so used. We distinguished Proper because in 1923 F.T.C. findings were not final nor could they be enforced without judicial action. Thus the findings could not be a "final judgment or decree," which is what Clayton Act § 5(a) requires before the findings can be used as prima facie evidence. By 1964 when New Jersey Wood was written, F.T.C. findings of both F.T.C. Act and Clayton Act violations were final and enforceable without court order. Thus, we said cases which continued to follow the Proper rule after 1959 failed to recognize the "affirmative statutory distinction" between finality of F.T.C. proceedings under the F.T.C. Act and the Clayton Act, which had existed between 1938 and 1959, and which had been recognized in cases such as Brunswick-Balke-Collender Co. v. American B. B. Corp., 150 F.2d 69, 74 (2d Cir. 1945).
F.T.C. findings of F.T.C. Act violations were made final by the Wheeler-Lea Act of 1938, 52 Stat. 111 (1938), 15 U.S.C. § 45(g); F.T.C. findings of Clayton Act violations were not made final until the Finality Act of 1959, 73 Stat. 243 (1959), 15 U.S.C. § 21.
Our discussion in New Jersey Wood of Clayton Act § 5(a)'s prima facie evidence rule is not applicable to the question in issue here of whether Clayton Act § 5(b)'s tolling provision applies for F.T.C. proceedings pursuant to the F.T. C. Act. Clayton Act § 5(b), unlike § 5(a), does not speak in terms of "final judgment or decree;" it requires only "civil or criminal proceeding[s] . . . instituted by the United States." As the Supreme Court emphasized in its affirmance of our holding in New Jersey Wood:
§ 5(b) tolls the statute of limitations set out in § 4B from the time suit is instituted by the United States regardless of whether a final judgment or decree is ultimately entered. . . .
When we turn from the express language of these two statutory provisions to the congressional policies underlying them, it becomes even more apparent that the applicability of § 5(a) to Federal Trade Commission actions should not control the question whether such proceedings toll the statute of limitations . . . .
This makes § 5(b) readily severable from § 5(a).
381 U.S. at 316-318, 85 S.Ct. at 1473.
In discussing the "affirmative statutory distinction" between F.T.C. Act and Clayton Act enforcement by the F.T.C. we did not, therefore, mean to imply that the distinction would govern determination of whether F.T.C. enforcement of the F.T.C. Act tolled the statute of limitations under Clayton Act § 5(b). The Supreme Court's affirmance of New Jersey Wood indicates clearly that we would be in error to pursue that statutory distinction discussed by us in New Jersey Wood to the conclusion suggested by defendants.
Having determined that F.T. C. proceedings alleging violations of F.T. C. § 5 may toll the statute of limitations, the next question is whether the F.T.C.'s 1954 proceedings against Luria Brothers had that effect on the present case. Resolution of that question must be made
by a comparison of the two complaints. The test is whether the private action is based in part on matters of which the government complained.
Rader v. Balfour, 440 F.2d 469, 473 (7th Cir. 1971); cf. Minnesota Mining and Manufacturing Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 322-324, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965). We analyzed the first count of the F.T.C. complaint of violations of F.T.C. Act § 5 in our affirmance of the Commission's finding of violations in Luria Brothers and Company v. F.T.C., 389 F.2d 847, 852 (3d Cir. 1968), as follows:
Count I in substance charged that Luria and the other petitioning mills entered into a series of agreements whereby Luria was to act as the exclusive broker for the petitioning mills. It charged that these agreements led to a restraint of trade and tended to create a monopoly in the scrap metal market in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1). Count I also charged that the petitioning mills conspired to effect a monopoly in Luria, that Luria and others restrained trade in export scrap, that petitioners engaged in coercive tactics, and that Luria acquired various competing companies — all in violation of Section 5.
The present complaint charges Luria with violations of Sherman Act §§ 1 and 2 and Clayton Act §§ 3 and 7 on the basis of the same agreements Luria had with various mills and Luria's same acquisitions of competitors. Since this complaint charges conduct which appears to have been involved in the prior proceeding, the statute was tolled by the F.T.C. proceeding initiated on January 19, 1954. The F.T.C. proceeding was "a civil or criminal proceeding instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws," and the present private action is "based in whole or in part on any matter complained of in said proceeding." 15 U.S.C. § 16(b).
We therefore disagree with the dicta in the district court's opinion that an F.T.C. proceeding pursuant to F.T.C. Act § 5 cannot toll the statute of limitations under Clayton Act § 5(b). The F.T.C. proceedings against Luria Brothers did suspend running of the statute on January 19, 1954. Therefore, as plaintiffs here did institute this action within one year after the completion of the F.T.C. proceeding, they may sue for all damages accrued since January 19, 1950, four years before the statute's running was suspended, in accordance with the four year statute of limitations in Clayton Act § 4B, 15 U.S.C. § 15b.
The district court tolled the statute on the basis of the F.T.C. proceeding for Clayton Act violations. Although the F.T.C. proceedings commenced January 19, 1954, the district court said it could not have tolled the statute until January 1, 1956. See footnote 5 supra. We find no such infirmity in the F.T.C. proceedings as of January 19, 1954.
In revising Clayton Act § 5 in the 1955 amendment, Congress recognized that the merger of law and equity in the Federal Rules of Civil Procedure in 1938 made anachronistic § 5's reference to "any suit or proceeding in equity;" thus, it amended the language to read "any civil or criminal proceeding." The amendment did not therefore create any substantive change in Clayton Act § 5's characterization of F.T.C. proceedings.
In holding in New Jersey Wood that F.T.C. proceedings tolled the statute of limitation, the Supreme Court made no distinction between the post and pre-1956 language. See majority opinion, 381 U.S. at 320-321, and dissent, 381 U.S. at 327, 85 S.Ct. 1473. The two opinions disagreed, not on the basis of what the 1956 amendment meant, but on construction of legislative history in 1914. Implicit in the majority opinion is the conclusion that an F.T.C. proceeding was not only a "civil proceeding" under the post-1956 statute, but also a "proceeding in equity" under the pre-1956 statute.
Although we find that the statute of limitations should have been tolled on January 19, 1954, rather than January 1, 1956, as the district court held, we do not disturb the judgment of the district court. There was no cross-appeal by plaintiffs, and thus we are bound by the principle of Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191-192, 57 S.Ct. 325, 328, 81 L.Ed. 593 (1937), that:
"Where each party appeals each may assign error, but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the appellate court, nor can he be heard if the proceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken."
See also Conover v. Montemuro, 477 F.2d 1073 at 1076-1078 (3d Cir. 1973). For the same reason, we need not reach the issue argued by plaintiffs that because the federal statute was not in existence in 1954 the six year statute of limitations of the Commonwealth of Pennsylvania, 12 P.S. § 31, rather than the four year federal limitation, applies. Chatanooga Foundry Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906); Philco Corp. v. Radio Corporation of America, 186 F. Supp. 155 (E.D.Pa. 1960).
Because we have found that the statute of limitations was tolled by the F.T. C. 1954 proceedings on the basis of the allegations of violations of F.T.C. Act § 5, we need not reach the second issue raised by appellants — whether the statute could also have been tolled by the allegations of Clayton Act § 7 violations.
The F.T.C. Clayton Act § 7 allegation concerned Luria's purchases of competing brokers. This Clayton Act § 7 violation is also alleged in the private suit sub judice. We need not reach the issue of whether F.T.C. proceedings pursuant to the Clayton Act in 1954 could have tolled the statute with regards to this aspect of the private suit, because Luria's purchase of competitors was also alleged by the F.T.C. in 1954 to be an F.T.C. Act § 5 violation. The F.T.C. Act allegation therefore tolled the statute with regards to these acquisitions, whether or not the Clayton Act allegations could have done so independently.
Defendants further urged in their motion for summary judgment and on appeal that even if the statute of limitations were tolled in 1954, it could not have been tolled as to the particular defendants in this case. They argue that the statute could not have been tolled (a) as to individual defendant William Luria because individuals cannot violate Clayton Act § 7, which speaks in terms of what "no corporation" can do, 15 U.S.C. § 18; or (b) as to the four named corporate defendants because none were involved in the scrap metal business in 1954 when F.T.C. proceedings began against Luria Brothers. We find no merit in either of these contentions.
William J. Luria was an officer of Luria Brothers in 1954. He is presently an officer of Luria Brothers Company, Inc., the Ogden subsidiary which operates the old Luria business. Although Luria, as an individual, could not violate Clayton Act § 7, Bender v. Hearst Corp., 152 F. Supp. 569, 578-579 (D.Conn. 1957), aff'd 263 F.2d 360 (2d Cir. 1959), he could have violated F.T.C. Act § 5 which applies to any person, partnership or corporation. As we have held that the statute was tolled by the Commission's proceedings under the F.T.C. Act § 5, the statute was certainly tolled as to Luria. We express no opinion with regard to whether the statute could have been tolled as to Luria on the basis of Clayton Act proceedings by the F.T.C.
Defendants' argument with respect to the corporate defendants is based on the holding of Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), that the statute may be tolled not only against defendants in the Government proceedings, but also against non-defendants who participated in the allegedly illegal conduct. Defendants argue that it is an obvious corollary to that rule that if a corporation was not even in the business in which wrongdoing occurred when Government proceedings began, it could not have been a participant in the illegal activities. No such obvious corollary exists. This argument ignores the plain statutory language of the tolling provision of Clayton Act § 5(b), which provides for tolling "in respect of every private right of action . . . based in whole or in part on any matter complained of" in the Government proceeding. 15 U.S.C. § 16(b). Plaintiffs have sued Ogden and its three subsidiaries for alleged antitrust violations which are nearly identical with those investigated by the F.T.C. They claim a private right of action against Ogden and its subsidiaries on the basis of their purchase, of, and continued operation of, the original Luria Brothers Company assets subsequent to initiation of F.T.C. proceedings. At this point in the instant litigation, there is no need for us to consider the effects of the stipulation entered into between Ogden and the F.T.C. in 1956 making the new Ogden subsidiary operating Luria's assets a respondent to the F.T.C. proceeding. Whether or not Ogden or its subsidiaries are legally liable for damages either before or after their purchase of Luria, because of the stipulation or more generally because they assumed liability for Luria's actions or continued allegedly illegal actions after the purchase, is an issue of liability yet to be resolved. We express no opinion as to liability of any of the defendants. All that we hold at the present time is that the statute of limitations was tolled in 1954 because of the F.T.C. proceeding. Issues of liability will be determined upon remand.
The judgment of the district court will be affirmed.
In Luria Steel Trading Corp. v. Ogden Corp., 484 F.2d 1016 (3d Cir. 1973), the Court of Appeals held inter alia that an FTC proceeding to enforce § 5 of the FTC Act tolled the statute of limitations.
Summary of this case from Wendkos v. ABC Consolidated Corp.


The car looks great!! and I'm pretty sure this car will beat the 1M Coupe in most aspects.
The rationale for not importing the F 20/F 21 into the US is rather unclear. The offensive notion that due rampant obesity the american buyer would find it difficult to get into the new 1-series can surely not be valid!
I find the M135i xDrive particularly interesting with superb performance on any surface combined with extremely favourable mpg!
I love the fact that M135i is available with 3 or 5 doors, with RWD or x-drive but the most important thing: without run-flats!
Is the x-drive available for 125i/d?
this is by far the most UGLY car BMW has ever produced. This entire new 1 Series line. Just ugly.
Those of you who think otherwise are just fooling yourself. Come on, look at it!
So is this basically a way to charge more for the is models?
This body style will not show up in the US because the market for a high end small hatchback is too small here. I think it is very likely this package will show up when the coupe version appears in North America.
Cool car, especially the 3-door in estoril blue. Does it have LSD?
No, 1M official stats. on 0-100 km/h is 4.9, 0-60 mph is 4.7. So the AT M135i is quoted identical with a 1M (manual) from factory not faster. Totally stock 1Ms are easily doing 0-100 km/h around 4.5 to 4.7 according to numerous tests, no slower and with minor upgrades like better tires (Michelin PSS etc.) they sure do even faster.
Last edited by ozinaldo; 05-13-2012 at 12:42 PM.
Why are you sure about that I wonder, what frustrated you about the 1M?
Hi how are you? Im not frustraded or anything like that. But im realistic the N55 matted with the DCT gearbox is amazingly fast! Also i have been reading info on this car for a lot of time and many say that on internal tests it is as fast as the 1M if not faster. Personally I love hactbacks! but nothing against the 1M!
+1 about the hatchbacks, I love them too. That's one thing I love about this new car, its versatility. I couldn't like the looks yet though, especially from front and this is despite the gorgeous blue color.
Another plus is a xdrive alternative, now that version with a auto box can be faster than a 1M at least in a drag race due to huge launch advantages (where 1M is weakest) plus it will be a much safer and weather proof car.
The interior is better quality too. So lots of things to like about this car indeed.
On the other hand, since I love the cartoonish bulldog looks of the 1M plus I always prefer a good manual to any automatic, it may not be my cup of tea.
With an open differential and an intermediate level of sporty suspension this car can not be compared to a 1M or a M3 in the chassis/handling department where it matters most for a M car anyway. But most drivers will not care about that too.
My initial impression is BMW made it right by calling it a M135i (a tone below a real M car if that's the intention) which will give it a broader customer appeal and options that are not available in cars like 1M which are destined for a narrower customer (enthusiast) profile, while keeping it fast and efficient. But for people who look for a follower to 1M they need to wait for another 2 years or so for the real deal which will possibly be named a M2. That one has to do better than this "almost-M hatch" and also better than the actual 1M in providing driving fun.
In the meantime I would like to read from serious reviewers how it will fare against great handling fwd or awd hatches like Renault Megane 265 Trophy, VW Golf/Scirocco R or the new Opel/Vauxhall Astra OPC which are direct competitors. This new BMW hatch has more power than those cars, rwd or xdrive and a newer design so it has to reign over existing super hatches first. Then Audi and others will bring more serious rivals.
It does have some sort of useless cheap E-diff thing instead.
So do I. I think it's a very attractive/sporty little car. It has some very edgy VW Golf elements to its look.
I am reading the available option for the manual gearbox will be an "eight speed automatic or eight speed sport automatic" so no DCT?


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Barry Yeo to step down as Barnstaple Town manager at the end of the season
By BTFC on April 5, 2017 in Club News
Yeo to step down after three and a half years and almost 200 games in charge.
Barry Yeo will step down as the manager of Barnstaple Town at the end of the season.
Yeo posted a statement on Twitter following Barum's 4-2 defeat at North Leigh in the Southern League last night (Tuesday).
In that message, Yeo said the decision had been a very hard one, but was '100 per cent the right one'.
He said: "I have given everything I have in the last three and a half years along with Baggs to take BTFC to where they are now.
"It's been an honour to manage my home town and I have to thank so many people.
"The support I have had has been amazing. The supporters, my wife, my family, my friends, the players, the volunteers and so many more.
"I had a plan to try and make this club a very competitive Toolstation League side but ended up achieving so much more and wanted to do it with local players, which we did and now that we are safe for another season in the Southern League it's time for someone else to take over.
"The players I have had in the past three and a half years have been credit to themselves, me and the whole club and will go down in the club's history books.
"I need to say the biggest thank you to Baggs who has been with me every step of the way and together we achieved all this and without him it would not have happened.
"So to the supporters you've all been amazing, I can't thank you guys enough.
"I will give everything till the final game and nothing less. Many thanks to you all."
In three and a half years, Yeo took the club from Division One of the Toolstation Western League up to where they are now in Division One South and West of the Southern League – doing so with back-to-back promotions.
His final game in charge on April 22 at Shortwood United will be his 196th in charge of Barnstaple Town.
Yeo has overseen 110 victories over that period.
Barry Yeo, BTFC
Turner double gives Barnstaple Town a point at Southern League champions Hereford
Tomorrow is our next pre-season game, we make the short trip to play Holsworthy AFC. Kick off is at 3pm.… https://t.co/qEtJPy0oU7 3 hours ago
@WestsideFc_ Sorry to see the sad news. Condolences from everyone at Barnstaple Town Football Club. 21 hours ago
Follow Official_BTFC on Twitter

redpajama_set_name: RedPajamaCommonCrawl


I have never intentionally stayed away from white, and I don't hate it, but I got to a point where I could hardly find white in my closet. I don't know...maybe I just overlook white when I'm shopping or hardly run into white items that appeal to me. I have started making a conscious effort to get some white in my wardrobe because...it's kind of a big deal, you know, being a wardrobe staple and all.
But unlike black, it apparently takes a lot to please me if a clothing item is white. I tend to like my whites in classics--white shirts, white tanks, white tees, and hardly venture beyond that. And I guess this is no different as LWDs (little white dresses) are another classic.
Wearing white, especially fitted, can be a little tricky if you're worried about looking unflattering. A quick tip with wearing a fitted white dress Iike this is pulling the attention away from the areas you don't want the attention on; like a cape.
This dress was from Boohoo but it is no longer available so here's a mini option from ASOS for $64 and another from Lulus for $64.


text:
Comments renew debate over adoption as abortion alternative
DAVID CRARY and JOHN HANNA
Year after year, several thousand women in the U.S. carry an unintended pregnancy to term and then offer the baby for adoption. It's a choice commended by many foes of abortion.
Yet despite a huge demand for babies from Americans yearning to adopt, perhaps 40 times more women opt for an abortion, and a large majority of those who proceed to give birth make the choice to keep the child.
The reason, say people familiar with unintended pregnancies, is that even in those circumstances, a powerful bond is likely to form between the mother-to-be and the developing baby — and to vastly complicate any decision to put the newborn up for adoption.
That idea is well known to doctors, clinic operators and other abortion-rights advocates, who say recent comments from U.S. Supreme Court Justice Amy Coney Barrett and other abortion opponents perpetuate a misleading narrative that adoption can negate the need for abortions.
Discussion of adoption as an alternative to abortion intensified this month when the Supreme Court heard oral arguments over a Mississippi law that would ban most abortions after 15 weeks. If the high court's conservative majority upholds the law, it could lead to the demise of Roe v. Wade, the 1973 decision that established a nationwide right to abortion, and enable conservative states to impose sweeping bans.
During the arguments, Barrett, an adoptive mother, said women who give birth due to lack of access to abortion could avoid being forced into parenthood by leaving the baby at a safe location, without fear of criminal consequences, so the infant could be adopted.
"It's just not the reality," said Ashley Brink, manager of a clinic operated by the abortion-rights group Trust Women in Wichita, Kansas. "It's undermining people's decisions and choices and ability to control their lives and their futures."
Bartholet described the justice's comments as "breathtakingly thoughtless" by failing to acknowledge the deep emotional bonds that many women have with their babies even when they result from an unwanted pregnancy.
Those bonds can grow more powerful immediately after birth, said Grace Howard, who has worked as a doula assisting women in childbirth and women seeking abortions.
"Your body's like, 'Bond! Bond, damn it!'" said Howard, an assistant professor in justice studies at San Jose State University.
The U.S. government tracks how many children are adopted out of foster care and from foreign countries, but there are no official, comprehensive figures on private adoptions of infants. Nonetheless, it's clear that only a small fraction of women carry unwanted pregnancies to term and then place the baby for adoption.
In 2014, there were an estimated 18,000 private infant adoptions nationwide, according to the National Council for Adoption, a private organization serving abortion agencies and other parties. That same year, there were 926,190 abortions in the U.S., according to the Guttmacher Institute, a prominent source of abortion-related statistics.
The adoption council is working on a new estimate of infant adoptions for 2019 and 2020. Its acting CEO, Ryan Hanlon, predicted the number would be similar to the 2014 estimate.
Kelsey Wright chose adoption — twice. She became pregnant in high school and, at 18, gave birth to a son in 2011. Feeling unprepared for parenting, she placed the baby for adoption with a family she knew.
Six years later, as a subsequent relationship was breaking up, she again became pregnant. And again, she chose to continue with the pregnancy and place her second son with the same family that adopted his brother.
Now 29, Wright lives in the Houston suburbs and got married last year. She and her husband have a 4-month-old daughter. She stays in touch with her sons, visiting occasionally even though their family moved to New Mexico.
"I don't have any regrets," Wright said. "It took time to heal, but I wouldn't change it for anything. I'm so grateful adoption was an option."
Some women who opted for abortion in response to an unintended pregnancy say the decision was difficult – yet they're also grateful they had a choice. Among them is U.S. Rep. Barbara Lee, a California Democrat, who says she received a "back-alley" abortion in Mexico after a teenage pregnancy.
Lee said adoption "is an alternative to parenting, not to pregnancy."
Many abortion-rights advocates are wary of some aspects of private adoption, viewing it as part of the agenda of anti-abortion activists.
Mallory Schwarz, executive director of Pro-Choice Missouri, said the anti-abortion pregnancy centers that proliferate in many states are part of that system.
"The role of crisis pregnancy centers is to trick people, coerce them out of making the right decision for themselves so that they choose to give up — choose to carry a pregnancy and then give up a baby to be adopted," Schwarz said.
In the past, unwed pregnant women in some communities were shunned, or pressured to place their babies for adoption. But even in conservative religious denominations, attitudes have evolved – for example, the U.S. Conference of Catholic Bishops and the Southern Baptist Convention's public policy arms have initiatives aimed at helping unwed moms obtain health care, financial support and other services.
"Some pregnant women were afraid to come to the church for help – they thought they were going to be judged," said Kat Talalas, assistant director for pro-life communications for the bishops' conference.
"Our goal is walk with them as sisters," she said of a recent initiative, Walking with Moms in Need. "We're showing them a positive vision of motherhood."
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"[...] Chaos Gnomes embrace the nature of chaos, and tend towards the life of sorcerers. They enjoy a more nomadic life, and seem to have the supernatural ability to manipulate luck in their favor."


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Please allow 24 hours to process a transcript request.
Transcripts for graduates cost $7.
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David is co-founder and Managing Director of XS Reserve Ltd.
He began his career as an international reinsurance underwriter in the London Market. In 2001 AIG chose David to underwrite a portfolio partnering Berkshire Hathaway following September 11th.
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Alan is Chairman of XS Reserve Ltd and 3 other privately – owned groups. Previously, he was Senior Partner of Price Waterhouse London.
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He was previously a Non – Executive Director of British Steel plc, N.M. Rothschild, Forte plc and Legal & General plc.
Geoffrey is an Executive Director of XS Reserve Ltd and is based in New York. During his 40 year career with PricewaterhouseCoopers he served many multinational clients and held several top management roles including Managing Partner of Price Waterhouse UK and Price Waterhouse Europe and Global Leader of Operations for PwC. For several years prior to his retirement from PwC he was the CEO of their large Bermuda based captive insurer. He also continues to chair another substantial Bermuda captive insurer and serves on the Boards of a publicly quoted US insurance company and its Lloyd's Syndicate.
© 2014 XS Reserve Ltd.


Everyone in the body is smiling and laughing within the North Korean cold. Otto Warmbier, just like the different vacationers, launches a snowball, captured in slow motion on what seems to be a camera telephone.
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"This is the Otto I recognize and love. This is my brother," wrote Austin Warmbier, who released the video, which turned into shot during a three-night time North Korea excursion on the cease of 2015.
Two months later, Otto would once more appear on video, but in very distinctive occasions.
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Looming over him had been the outsized snapshots of North Korea's former supreme leaders, Kim Il-sung and Kim Jong-il.
He wore a cream-colored jacket and tie. Before speaking, he got up and provided a low bow.
Otto thanked the North Korean government for the "opportunity to apologize for my crime, to beg for forgiveness and to beg for any help to keep my lifestyles".
He stated he tried to thieve a propaganda sign from a resort as a "trophy" for a US church with the "connivance of the US management" to be able to "harm the paintings ethic and motivation of the Korean humans".
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The Warmers hail from a small suburb called Wyoming in Cincinnati, Ohio, wherein father Fred owns a small employer.
Otto attended the first-rate excessive college in the nation and was prom and homecoming king.
He was now not simplest famous but additionally studious – he graduated as Salutatorian (the second maximum ranking pupil in his yr) – and a skilled athlete. His football teach has stated he changed into a gifted participant and a herbal leader.
Otto went on to examine economics and trade with a minor in international sustainability at the University of Virginia and flourished there, consistent with the Washington Post.
The newspaper interviewed Otto's classmates at their graduation ceremony in May, where #FreeOtto stickers have been passed out. The 22-year-vintage changed into in his 0.33 12 months of university when he turned into detained in North Korea. This ought to have been his graduation too.
Friends described him as a "sports fan who can reel off stats about seemingly any team, a friendly Midwesterner who can damage down underground rap lyrics (and craft some of his personal), a deep thinker who could project himself and others to question their vicinity within the world, a man from an entrepreneurial own family who ate 1/2-fee sushi, an insatiably curious individual with a sturdy paintings ethic and a satisfaction within the ridiculous," the paper said.
Otto is said to have regarded lengthy before his college peers what he desired to pursue as a profession: investment banking.
According to his LinkedIn profile, he sat on the committee of a student investment fund and traveled to London in 2015 to finish a route in advanced econometrics on the London School of Economics.
His studiousness – and interest in the tour – have been what took him to Asia. Otto have been set to observe at a college in Hong Kong on a take a look at overseas programme in January 2016 and determined to stop in North Korea on the manner.
He went thru a China-primarily based organization known as Young Pioneer Tours, which boasts of imparting "finances tour to destinations your mother could alternatively you stayed far away from".
Danny Gratton, from Staffordshire in the UK, shared a room with Otto all through the 3-night time experience – they had been the simplest two individuals of the excursion institution who have been there on their very own.
"From the second one I met him we get on well. He changed into very vivid, sensible and likable," he told the BBC.
The night Otto is stated to have tried to take the sign from within a group of the workers-most effective location of the 1,000-room Yanggakdo International Hotel became New Year's Eve 2015, the second night time of the tour.


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ABC Drops "Eastwick" Finale, Shuffles "Primetime"
Encores of "Scoundrels" and "The Gates" will replace "Eastwick's" planned burn off on Saturday, July 10.
ABC spins the numbers for Thursday, July 1.
The trio join "Sons of Anarchy," which had previously been booked for said month.
The new season replaces "Love Bites," which will now premiere later during the 2010-11 season.
The show joins ION's lineup on Monday, July 5 with a special marathon running from 3:00 PM to 12:00 midnight, ET.
Klein joins Sundance Channel from Travel Channel, where he was senior vice president of development and production of all original programming on the network.
NBC spins the late-night numbers for the second quarter of 2010.
All three will wrap their seasons the weeks leading up to the broadcast networks' fall launches.
Plus: "Surviving the Cut," a new series which "follows the best of the best the U.S. military has to offer as they fight for special operations' most elite status."
The one-hour special airs Monday, July 5 at 9:00/8:00c.
ESPN spins the numbers for the second quarter of 2010.
CBS spins the late-night numbers for the second quarter of 2010.
The series will follow "Pretty Little Liars" on Tuesday nights beginning July 13.
The six-part series launches Wednesday, July 21 at 9:00/8:00c.
Co-stars Daniel Dae Kim and Grace Park will be on site for the panel on Friday, July 23.
Co-stars Noah Wyle and Moon Bloodgood will be joined by co-executive producer Mark Verheiden at the panel.
ABC spins the late-night numbers for the second quarter of 2010.
Sweet! Bravo Announces Judges for "Top Chef: Just Desserts"
Johnny Iuzzini, Hubert Keller and Dannielle Kyrillos will join host Gail Simmons.
Updates include: Emily VanCamp leaves "Brothers & Sisters"; and Mike Huckabee to topline a new syndicated offering.
Plus: the original special "Who is Rob Dyrdek" airs Monday, July 5 at 11:00/10:00c.
The cable channel confirms the return date of the Thom Beers-produced original series.
The 13-part revival will air Thursdays at 9:00/8:00c beginning August 12.
Back-to-back episodes will begin at 9:00/8:00c.
The seven-episode series follows Dee Snider, the legendary front man of heavy metal group "Twisted Sister," and his family.
Starz Cancels "Party Down," "Gravity"
Both series wrapped their runs last week.
The 90-minute special had originally been scheduled for this Thursday.
In addition, teen fans can also enter for the opportunity to assist FOX's official red carpet photographer.
The Eye details this season's participants of its summer franchise.
Updates include: Elijah Wood to star in FX's "Wilfred"; Claire Forlani joins Starz's "Camelot"; and financials on "Glee" and "Modern Family's" off-network deals.
ABC Family spins the numbers for Monday, June 28.
USA will strip the series Monday through Sunday beginning Fall 2013.
Oxygen Media and Twentieth Television Reach Agreement for Exclusive Basic Cable Syndication Rights to Twentieth Century FOX Television's Hit Broadcast Series "Glee"
Plus: Oxygen will be home to a companion unscripted reality competition series to discover the next "Glee" star, due in June 2011.
TV Land spins the numbers for the second quarter of 2010.
Animal Planet spins the numbers for the second quarter of 2010.
Disney Channel spins the numbers for the second quarter of 2010.