author: HILL, Circuit Judge.

text:
    Gene A. WARD, M. D., Plaintiff-Appellant, v. ST. ANTHONY HOSPITAL et al., Defendants-Appellees.
    No. 72-1611.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 12 ,1973.
    Decided April 4, 1973.

      Robert Temmer, Denver, Colo. (Charles F. Brega and Samuel J. Smith, Denver, Colo., on the brief), for plaintiff-appellant.
    Richard T. Spriggs, Denver, Colo., for def endants-appellees.
    Before HILL and HOLLOWAY, Circuit Judges, and TEMPLAR, District Judge.
   HILL, Circuit Judge.

This is an appeal by plaintiff-appellant Ward from a decision in the District of Colorado dismissing his action against St. Anthony Hospital, a nonprofit hospital, and others for lack of jurisdiction.

Dr. Ward is a licensed physician who practiced medicine in Wheat Ridge, Colorado, until shortly after the institution of this action. In connection with his Wheat Ridge practice, Dr. Ward was a member of the medical staff of St. Anthony Hospital until May 10, 1971. On that date appellee Hospital, acting by and through its medical executive board and board of trustees, suspended Dr. Ward from its hospital staff.

Dr. Ward avers that his dismissal is unwarranted, arbitrary and in violation of the Hospital’s “Constitution, ByLaws, Rules and Regulations.” In particular, Dr. Ward declares that the Hospital failed to follow proper administrative procedures before ordering his suspension, in that the Hospital failed to advise him of the proposed suspension of staff privileges; failed to advise him of the reasons for the proposed action; failed to allow him to appear before either the Credentials or Executive Board; and failed to give him the opportunity to appeal his case to the Board of Trustees prior to suspension. These actions were all in violation of Article II, Section G, paragraph 3 of the Hospital’s “Constitution, By-Laws, Rules and Regulations”:

3. Change of status of a staff member from a classification of greater privilege and responsibility to one of lesser, or vice versa, may be initiated by any service or by the Executive Board itself. In all such cases the member himself shall be informed by the Secretary of the proposed action, and shall be acquainted with the rea- • sons therefor. Each such member shall have ample opportunity to present his views on the proposed Change of Status to the Credentials Committee and/or the Executive Committee. In event of a disagreement between the member and the Executive Board, the member shall have the right to appeal to the Board of Trustees.

Realizing his first obstacle was to surmount the jurisdictional hurdle, Dr. Ward advanced several arguments supporting his right to sue in federal district court. He first asserted that receipt of Hill-Burton, Medicare and Medicaid funds by St. Anthony Hospital constituted sufficient state action to vest the federal district court with jurisdiction under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and 28 U.S.C. § 1343(3). His second major allegation was that a conspiracy had been committed for the purpose of denying Dr. Ward his hospital staff privileges in violation of 42 U.S.C. § 1985 and 28 U.S.C. § 1343(1). The district court rejected these arguments and found that any federal funds given St. Anthony Hospital were insufficient to color the Hospital with state action under the United States Constitution or federal statutes. The lower court further held that § 1985 does not apply since there was no conspiracy to obstruct the due course of justice as prohibited by that section. vidual is not the subject matter of the Fourteenth Amendment. Nor does the Equal Protection Clause prohibit violations of individual rights unless to some significant extent the state is found to have become involved in the violations. The Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L.Ed. 835 (1883). Dr. Ward therefore must show state involvement in the Hospital’s suspension of his staff privileges before federal law will apply. To overcome this hurdle, he alleges that federal funds received under Hill-Burton, Medicare, Medicaid, and Colorado-Wyoming Regional Medical programs color the hospital with enough state authority to constitute his dismissal as “state action.” It is Dr. Ward’s position that all state and federal aid given the Hospital carried with it stringent regulations; that by accepting these governmental funds with the attendant regulations the hospital was transformed into an arm of the state; and that the Hospital members and directors were agents of the- state, therefore their dismissal of Dr. Ward was the state’s dismissal of him.

Appellant’s most persuasive argument is that acceptance of Hill-Burton funds causes the Hospital to act under color of state law. In 1964, the Hospital received two Hill-Burton grants totaling approximately $588,000. Acceptance of the funds, Dr. Ward argues, places the Hospital within the jurisdiction of 42 U.S.C. § 1983. Any other construction would allow states to deprive individuals of their civil rights by funneling funds through private institutions. Holmes v. Silver Cross Hospital, 340 F.Supp. 125 (N.D.1972). In support of this position, Dr. Ward relies on Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U. S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). In that case the court found defendant hospital’s participation in the Hill-Burton program sufficient to invoke federal jurisdiction. The court demanded the hospital to end racial discrimination in determining who might use the facilities.

Plaintiff’s argument boils down to the fact that states must maintain a fair and just governance of hospitals accepting Hill-Burton funds. Sams v. Ohio Valley General Hospital Ass’n, 413 F.2d 826 (4th Cir. 1969); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D. Pa.1970). It necessarily follows, appellant argues, that once a private hospital accepts these state funds its representatives are clothed with a mantle of state law. Bricker v. Sceva Speare Memorial Hospital, 339 F.Supp. 234 (D.N.H.1972).

As our court emphasized in Don v. Okmulgee Memorial Hospital, 443 F.2d 234, 235 (10th Cir. 1971), “While receipt of funds under the [Hill-Burton] Act may be significant in determining the existence of state action in acts alleged to have violated a person’s constitutional rights, the Act itself creates no personal rights or causes of action as such, nor does it confer jurisdiction on federal courts of controversies involving civil or other personal rights.” Stated another way, Dr. Ward cannot obtain jurisdiction merely by invoking the Hill-Burton Act; he must show that funds granted under the Act clothe the Hospital with sufficient state authority to constitute state action. From the cases Dr. Ward cites above, it is clear that determining what is state action is no easy matter. “Only by sifting and weighing circumstances can the non obvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).

Dr. Ward urges us to hold that private institutions receiving state or federal aid are acting under color of state law. Citta v. Delaware Valley Hospital, supra. There may be a point in the amount of governmental aid given private hospitals which renders the acts of its board members the acts of the state. We do not attempt to decide that question here. But in any event, we do not feel in the present case the Hospital has received governmental funding sufficient to invoke § 1983 jurisdiction. The Hospital was given approximately $588,000 in Hill-Burton funds between the years 1958 and 1971. During the same period total construction costs were approximately $11,500,000. The percentage of Hill-Burton funds to total construction cost was approximately five percent. Such a small percentage of the total costs is not sufficient to invoke federal jurisdiction. Otherwise, in our time of increasing federal aid to private institutions and businesses, the private sector would find itself constantly charged with state action in the performance of functions normally considered as private. Grossner v. Trustees of Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968).

There is little doubt that under the Hill-Burton Act and state law, hospitals in Colorado are subject to intricate state regulation. This alone, however, is not sufficient to invoke federal jurisdiction. State action does not arise merely because private hospitals receive governmental aid; more is required than that. Our court previously held that the state must be involved in the activity causing the alleged injury before federal jurisdiction can be invoked. That is, the claimed involvement must be associated with the challenged activity. Browns v. Mitchell, 409 F.2d 593 (10th Cir. 1969). The fact that Colorado regulates “facilities and standards of care of private hospitals or offers them financial support does not make the acts of these hospitals in discharging physicians the acts of the state.” Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020, 1023 (S.D.N.Y.1971). Such a rule would overlook the “essential point— that the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private action, must be the subject of complaint.” Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968).

Dr. Ward has failed to show that Colorado is involved in his dismissal from the St. Anthony Hospital. This crucial point distinguishes many of the cases Dr. Ward relies upon to show state involvement. For example, in Simkins v. Moses H. Cone Memorial Hospital, supra, the state of North Carolina actively engaged in a plan to distribute Hill-Burton funds to a private, racially segregated hospital pursuant to a state policy of racial segregation. The federal court properly exercised jurisdiction because plaintiff was challenging the state’s illegal policy of encouraging segregation. No such state involvement has been shown by Dr. Ward in the present case.

State regulation of Colorado hospitals is to assure quality medical service throughout the state. Nowhere has Dr. Ward shown that Colorado has an interest in supervising or influencing the purely internal affairs of private hospitals. Without this proof we do not believe receiving Hill-Burton or state funds is sufficient to invoke federal jurisdiction under § 1983.

Dr. Ward further argues that even if the Hospital’s receipt of Hill-Burton funds is not sufficient to invoke federal jurisdiction, the cumulative effect of the Hospital’s exemption from state and federal taxes, its receipt of substantial funds from Medicaid and Medicare and its subjection to exhaustive state and federal regulations transforms it into an arm of the state. Our court has expressly held in Browns v. Mitchell, supra, that tax exemptions alone do not vest a private institution with state authority. Dr. Ward also argues, however, that all the benefits received and regulations imposed on the Hospital by the state distinguish this case from Browns and brings it within the realm of Holmes v. Silver Cross Hospital, supra. In Holmes, the plaintiffadministratrix sued defendant private hospital under 42 U.S.C. § 1983 for giving decedent a blood transfusion after the decedent had advised the doctors of his religious convictions which precluded transfusion. The court allowed jurisdiction because defendant hospital is licensed by the state and is subjected to pervasive regulations concerning its operations. Its actions are state actions for Fourteenth Amendment purposes and under color of state law. We do not find Holmes persuasive authority because our court, as emphasized above, requires the complaining party to show a causal connection between state conduct and plaintiff’s injury. As Dr. Ward has not shown this causal connection we are precluded from hearing this ease. Browns v. Mitchell, supra.

Dr. Ward’s final argument is that staff members, employees and agents of defendant Hospital met at various times and places for the purpose of denying him his staff privileges. This unlawful conspiracy was in violation of 42 U.S.C. § 1985 and 28 U.S.C. § 1343(1). Admittedly private conspiracies as well as those perpetrated by state authorities may be the subject of a suit in certain types of cases. Griffin v. Breekenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). This authority to sue for a private conspiracy, however, has been expressly limited:

That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose — by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. . . . The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.

Griffin v. Breekenridge, at 101-102, 91 S.Ct. at 1798. Nowhere has Dr. Ward alleged that he was a member of any particular class, racial or otherwise. The alleged removal of him from defendant’s medical staff has in no way been equated with racial or otherwise class based invidiously discriminatory animus. His failure to show class based discrimination precludes our court from invoking § 1985 jurisdiction.

The court’s order denying the filing of a second amended complaint and dismissing this action was entirely proper.

Affirmed.

      . Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . The district courts shall have original jurisdiction of any civil action authorized by law tó be commenced by any person: (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; . . .

      . Apparently Dr. Ward is relying on § 3 of 42 U.S.C. § 1985, as this section is the only one applicable:
      (3) If two or more persons in any State or Territory conspire or go in disguise on the highways or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

      . As the Supreme Court long ago held, invasion of civil rights by an indi4. The district courts will have original jurisdiction of any civil action authorized by law to be commenced by any person: (1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42.

      . The Hill-Burton Act provides federal funds for governmentally owned and voluntary non-profit hospitals. State agencies inventory existing facilities to de termine hospital construction needs and develop construction priorities under federal. standards. These agencies then adopt state-wide plans which are submitted to the Surgeon General of the United States for his approval. Once approved, federal funds are allocated among the states according to a mathematical formula based on population and per capita income (42 U.S.C. § 291)


source: Caselaw Access Project

author: DYER, Circuit Judge: CLARK, Circuit Judge

license: Public Domain

text:
    Bennie G. THOMPSON et al., Individually, etc., Plaintiffs, Evelyn K. Thomas and Wade E. Sutton, Plaintiffs-Appellants, v. MADISON COUNTY BOARD OF EDUCATION and Robert E. Cox, Superintendent of the Madison County School District, Defendants-Appellees.
    No. 72-1760.
    United States Court of Appeals, Fifth Circuit.
    March 13, 1973.

      Frank R. Parker, Lawyers’ Committee for Civil Rights Under Law, James M. Abram, Jackson, Miss., for plaintiffs-appellants.
    G. Milton Case, R. L. Goza, Case & Montgomery, Canton, Miss., for defendants-appellees.
    Before GODBOLD, DYER and CLARK, Circuit Judges.
   DYER, Circuit Judge:

Sutton and Thomas had been employed as teachers in the Madison County, Mississippi, school district but were not offered new contracts of employment for the 1970-71 school term. In their complaint, they sought injunctive relief from the school board’s allegedly racially discriminatory refusal to rehire them as public school teachers. The district court found that the refusal of the Madison County Board of Education to rehire the two plaintiffs was based on “just and proper cause.” We reverse.

After the complaint was filed the district court ordered the Board to provide the plaintiffs with written notices of the reasons for their discharges, a summary of the evidence, and the names of witnesses. The order further required the Board to hold a hearing, with the opportunity to the plaintiffs to cross examine witnesses, to present evidence, to be represented by counsel, and to be informed in writing of the final determination by the Board, with a statement of the reasons and evidence relied upon to support its decision. The record of the hearing was to be transcribed and the findings were to be filed with the district court. All of the preliminaries were accomplished and, after a full evidentiary hearing before the Board, both of the plaintiffs’ claims were denied.

We agree with the district court that it was the Board’s responsibility, in the first instance, to provide a hearing, on notice, to the plaintiffs. And we emphasize that “[t]he findings and decision of academic administrative bodies are to be upheld by the courts when reached by correct procedures and supported by substantial evidence.” Green v. Regents of Texas Tech Univ., 5 Cir. 1973, 474 F.2d 594. When this case was set for trial, however, the parties were informed that there would be no trial in the sense of hearing witnesses or taking evidence. Instead, the court decided that it would rely on the facts as developed at the evidentiary hearing before the Board and that it would limit the formal trial to the presentation of legal argument.

Due process mandates that a judicial proceeding give the affected parties an opportunity to be heard on the allegations asserted in the complaint and to present evidence and argument on the contested facts and legal issues framed by the answer to the complaint. Before a district court adjudges, it must determine the facts for itself on the basis of the proffered evidence. It may not simply decline to hear evidence and base its conclusions solely on the transcript of a school board’s hearing. In short, a court can only render a judgment after the parties have been afforded a full and fair trial on the claims properly before the court.

As a result of the district court’s refusal to grant the plaintiffs a full evidentiary hearing, we are unable to determine whether the Madison County School District is still in the process of implementing the desegregation or.ders of this Court or whether desegregation has already been completely achieved. Consequently, we find ourselves with no record on which to predicate a decision concerning the applicability of Singleton v. Jackson Municipal Separate School District, 5 Cir. 1969, 419 F.2d 1211. Moreover, although the district court’s opinion implies that Singleton is applicable, the court failed to make any determination whether the defendants had complied with the Singleton requirement that “objective and reasonable non-discriminatory standards” be established for selection of the teachers to be dismissed, demoted, or not rehired.

Additionally, assuming that Singleton does apply, the district court’s conclusion that there was “just cause” for Sutton and Thomas not being rehired appears to be erroneously based on a subjective comparison of the plaintiffs’ proficiency in the classroom with the performance of other teachers in the school district. We recognize that under certain circumstances, Singleton notwithstanding, discharges on .the basis of “just cause” may be warranted without reference to the school board’s pre-established objective and reasonable standards. However, “just cause” in a Singleton situation does not refer to a teacher’s lack of professional credentials, his poor performance in the classroom, his failure to abide by school regulations, his lack of cooperation, or other similar explanations. These types of reasons for discharge fall directly within the scope of Singleton, and accordingly such discharges must be justified on the basis of objective and reasonable standards for dismissal previously set by the school board. If this kind of a discharge can be justified in terms of the established objective standards, it is not for “just cause”; it is simply a discharge in compliance with Singleton criteria. “Just cause” in a Singleton situation means types of conduct that are repulsive to the minimum standards of decency — such as honesty and integrity— required by virtually all employers of their employees, and especially required of public servants such as school teachers. No pre-established objective criteria are necessary to justify the discharge of a teacher whose conduct does not measure up to these minimum standards of behavior. For example, if a teacher came to school drunk, or was found stealing from the school treasury, or sexually assaulted a student, the school board could substantiate on “just cause” grounds its firing of that teacher, even though the school system was still in the process of desegregation and whether or not the school board had established any Singleton criteria for discharge or demotion.

If, on the other hand, desegregation of the Madison County school district has been completed so that Singleton is inapplicable, “just cause” would embrace a much wider range of teacher conduct, as well as other reasons. If the school district has a tenure system “just cause” might, for example, encompass reduction of the school system’s budget, a teacher’s gross neglect of his duties, or his continued poor performance in the classroom — i. e., reasons for discharge or for not rehiring similar to those for which Singleton requires that the school board establish objective criteria during periods of desegregation.. Furthermore, if the school district has no tenure system or if the plaintiffs were not tenured and had no expectation of reemployment, the school board’s refusal to rehire them for whatever reason it chose would be justified, because such teachers would have no prospect of continuous employment from one school year to the next. In this situation, and in this situation alone, there is a difference between the “just cause” reasons for a school board’s refusal to rehire a teacher for the next school year and its discharging or demoting a teacher during the school year. During the school year, the reason for discharge or demotion must conform with the “just cause” standard for dismissing a tenured teacher or, if the school district does not have a tenure system, it must comply with due process requirements; whereas at the end of the school year, the school board can refuse to rehire a non-tenured teacher with no expectation of reemployment without any reason at all. See Moore v. Knowles, 5 Cir. 1972, 466 F.2d 531; Skidmore v. Shamrock Independent School District, 5 Cir. 1972, 464 F.2d 605. However, if the school board bases the nonrenewal of the teacher’s contract on a charge that implicates the teacher’s interest in liberty or property, he must be afforded an opportunity to refute the charge before the school officials. Board of Regents v. Roth, 1972, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570.

In sum, it is essential to any appraisal of the propriety of a school board’s dismissal of a teacher to determine first if desegregation is still in process, for what constitutes “just cause” will vary greatly depending on whether or not Singleton is applicable. Moreover, if desegregation has been fully completed, it is necessary to determine if the school district has a tenure system; if so, then it is important to ascertain whether the plaintiffs are tenured or have a reasonable expectation of reemployment. Finally, the timing of the discharge is significant — i. e., whether it comes at the end of a school year or during the school year.

The judgment of the district court is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

CLARK, Circuit Judge

(concurring specially):

In my opinion the dicta in the panel majority regarding the due process consequences of the academic procedure we have required to be established (particularly the notion that every court proceeding eventuating from the process must be conducted de novo) severely undercuts the principle on which the procedure rests. Hence this concurrence.

This circuit is firmly committed to the proposition that every teacher discharge controversy must be filtered through an academic hearing procedure before embedded federal claims become ripe for court adjudication. Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970); Stevenson v. Board of Education of Wheeler County, 426 F.2d 1154 (5th Cir. 1970). If this required hearing process is to serve' its proper function, it must not be reduced to an empty gesture. Accordingly, court proceedings should not be conducted on a de novo basis. A school hearing procedure which is conducted in accordance with the dictates of procedural due process is entitled to great weight and if substantial evidence appears to support the school board’s action, that ordinarily ends the matter. Green v. Regents of Texas Tech University, supra; Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1971); Ferguson v. Thomas, supra; see also Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th Cir. 1971); London v. Florida Department of Health and Rehabilitative Services, 448 F.2d 655 (5th Cir. 1971).

I agree that in the present case neither the district court nor this court is able to determine whether the Madison County School District is still in the process of implementing the desegregation orders of this Court or whether desegregation has already been completely achieved. Consequently, the academic hearing record furnished no basis on which to predicate a decision concerning the applicability of Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969).


author: MANSFIELD, Circuit Judge:

text:
    Juan A. GONZALEZ, Administrator on behalf of the Estate of Efrain Gonzales, Deceased, Plaintiff-Appellant, v. John DOE, Officer of the Hartford Police Force, et al., Defendants-Appellees.
    No. 318, Docket 72-1508.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 8, 1972.
    Decided March 15, 1973.

      Mitchell Pearlman, Hartford, Conn. (Bruce C. Mayor, David Pels, Hartford, Conn., on the brief), for plaintiff-appellant.
    Jerome T. Malliet, Hartford, Conn. (Richard M. Cosgrove, Deputy Corp. Counsel, Hartford, Conn., of counsel), for defendants-appellees.
    Before LUMBARD, SMITH and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Juan A. Gonzalez, administrator of the estate of his deceased brother Efrain, brought an action in the United States District Court for the District of Connecticut seeking damages against a then unknown Hartford police officer, other named supervisory police officials of the City of Hartford, the former City Manager, and the City itself, for the alleged homicide of Efrain and the deprivation of his civil rights in violation of 42 U.S.C. § 1983. The police officer, originally designated John Doe, is now claimed to be Thomas Ganley.

The district court, acting upon a motion filed by the City alone, dismissed the claims against the City, holding in reliance upon Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that the City is not a “person” within the meaning of 42 U.S.C. § 1983 and that it therefore may not be sued thereunder. Plaintiff urged retention of pendent jurisdiction over the City, even if it were held not liable to suit under § 1983, because Conn.Gen. Stats. § 7-465 (1972) might obligate it to pay on behalf of the defendant City officials any sums for which they might be held liable as a result of this proceeding. Applying the standards set forth in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), however, the court also declined to exercise pendent jurisdiction over state law claims against the City.

On motion of the plaintiff under Rule 54(b), F.R.Civ.P., Judge Clarie determined that there was no just reason for delay and directed entry of a final judgment dismissing the claims against the City. Accordingly, the appeal is properly before us. See Farrell v. Piedmont Aviation, Inc., 411 F.2d 812, 814-815 (2d Cir.), cert. denied, 396 U.S. 840, 90 S.Ct. 103, 24 L.Ed.2d 91 (1969); 6 Moore, Federal Practice ¶ 54.45 [2-2] (2d ed. 1971). We affirm the dismissal of both the § 1983 and pendent claims against the City.

The case arises out of the shotgun slaying of Efrain Gonzalez in Hartford during a period of civil strife in that City in July, 1970. Defendant police officers were on duty at the time in an attempt to quell the disturbances. Plaintiff claims that his brother was shot without provocation by Officer Ganley who then left the scene with other police officers, none of whom attempted to render any assistance to the fatally wounded victim.

The complaint designates eight separate claims or causes of action. The first three seek compensatory and punitive damages under § 1983 against Officer Ganley for the slaying of Efrain Gonzalez, either wilfully and wantonly or through the negligent use of excessive force. The Fourth and Fifth Claims are jointly and severally directed against the other defendant municipal employees, seeking the same relief under § 1983 for negligent failure to supervise and prevent in various respects the use of deadly force by the police in the control of civil disturbances, which allegedly resulted in the shotgun death of Efrain Gonzalez. The Eighth Claim seeks the same relief from Ganley and the other individual defendants for an alleged conspiracy to conceal Ganley’s identity and thereby prevent the enforcement of plaintiff’s right to damages under § 1983.

Upon this appeal we are concerned only with the dismissal of the Sixth and Seventh Claims as against the defendant City of Hartford. The Sixth Claim was brought under Connecticut’s wrongful death statute and seeks “pecuniary damages” jointly and severally against the individual defendants. The Seventh Claim, which incorporates the § 1983 and wrongful death allegations contained in the first six claims, and further alleges that at all material times the defendant City officials were acting within the scope of their employment, is directed against the City of Hartford and asks compensatory damages and costs only.

I.

In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court canvassed the legislative history of Section 1 of the Ku Klux Act of April 20, 1871, now codified as 42 U. 5. C. § 1983, and noted that a proposal (suggested by Senator Sherman) to add a separate section to the Act providing for municipal liability in damages was rejected amidst vigorous debate over the question of Congress’ constitutional power to impose civil liability on the municipal corporations of the states. The Court concluded that “[t]he response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word ‘person’ was used in this particular Act to include them.” Id. at 191, 81 S.Ct. at 486. Absent any judicial or legislative modification, the effect of this landmark decision is to preclude suit against a municipality based on § 1983.

Appellant seeks to avoid the breadth of Monroe by urging that where a state has, through a law such as Conn.Gen.Stats. § 7-465, voluntarily imposed on its municipalities an obligation to pay certain damages for which one or more of its employees has been held liable and has removed from them the defense of governmental immunity, no question of federal deference to local immunity is involved and a claim for damages under § 1983 should therefore be permitted against the municipality. The correctness of this view is said to be buttressed by the existence of 42 U.S.C. § 1988 which has been read to mean that “both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal [civil rights] statutes [described in § 1983],” Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240, 90 S.Ct. 400, 406, 24 L.Ed.2d 386 (1969) (action under 42 U.S.C. § 1982). Appellant further argues that Monroe v. Pape has been eroded by decisions granting equitable relief against municipal corporations under § 1983 and by the absence of any indication in that statute’s legislative history of Congressional hostility toward the imposition of municipal liability where such liability is imposed by state law. In short, we are asked to draw the “inference that Congress intended municipalities to be liable under the Civil Rights Act to the extent that they are liable under state law.” This we decline to do.

In construing the word “person” as used in § 1983, the Supreme Court did not base its decision upon policy considerations but upon the clearly defined intent of Congress as evidenced by the legislative history of that statute. 365 U. S. at 191, 81 S.Ct. 473. The 42nd Congress, voicing sharp hostility to subjecting municipalities to liability for damages based upon violation of civil rights, made it clear that the term “person” was not to include a municipality. Whatever may be our views as to the wisdom of subjecting municipalities to liability when the parent state has adopted a legislative amendment, we cannot now expand that meaning by attributing to Congress policy considerations which it never entertained. To say that the 42nd Congress, if it had pondered further upon the matter, might have concluded that § 1983 should reach a situation where a state itself imposes liability upon its municipalities for acts of their employees is to rewrite history. There is no evidence that it ever contemplated such a possibility. But there is strong evidence to the contrary, which led the Supreme Court in Monroe to conclude that since a municipality is not a' “person” it may not be held liable in damages for deprivation of rights protected by § 1983. The word “person” as used in the statute has the same meaning now as it had then. As the Seventh Circuit recognized in dealing with the same issue in Ries v. Lynskey, 452 F.2d 172, 175 (7th Cir. 1971), the question is

“[N]ot whether the Congress in 1871 would have included a municipality within the definition of ‘person’ if at the time municipalities generally had not had immunity under the common law of states but rather the test is what Congress meant to do at that time irrespective of the reasons leading to that action. What Congress meant to do, it. seems clear from the exposition in Monroe, was to legislate that ‘person’ did not include a municipality.”

We are aware that in Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 368-369 (1971), reversed on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (Jan. 10, 1973), the District of Columbia Court of Appeals adopted the view, here advocated by appellant, that municipalities may be held liable in damages under § 1983 to the extent that they are liable under state law. But we find ourselves in accord with the contrary views expressed in Yumich v. Cotter, 452 F.2d 59 (7th Cir. 1971), cert. denied, 410 U.S. 908, 93 S.Ct. 955, 35 L. Ed.2d 269 (1973), which rejected the reasoning of Carter v. Carlson, supra, stating :

“With all respect, however, we read Monroe as a binding statutory construction, not dependent upon state law immunity, and not related to a deficiency in federal remedies, but establishing that § 1983 does not impose liability for damages upon a city.” Id. 452 F.2d at 61.

The same position has been adopted by other courts which have considered the issue in this light, see Moor v. Madigan, 458 F.2d 1217, 1218-1220 (9th Cir. 1972); Wilcher v. Gain, 311 F.Supp. 754 (N.D.Cal.1970); see also Patrum v. City of Greensburg, 419 F.2d 1300 (6th Cir. 1969), cert. denied, 397 U.S. 990, 90 S. Ct. 1125, 25 L.Ed.2d 398 (1970).

We find no warrant for a departure from the Monroe rule of municipal immunity from damages under § 1983 in the reasons pressed upon us by appellant. While § 1988 may allow use of state remedies in redressing deprivations under § 1983, at least where federal remedies are deficient, see Sullivan v. Little Hunting Park, Inc., supra,, we are here confronted with the preliminary issue of whether liability exists at all under § 1983, not what remedy would be appropriate if liability should exist. Manifestly the nature of an appropriate remedy, which assumes the existence of liability, is irrelevant to the question of whether liability can attach in the first place. Furthermore, since state remedies available by virtue of § 1988 may not be “inconsistent with the . laws of the United States,” and municipal liability for damages does not exist under § 1983, Monroe v. Pape, supra, such liability cannot be created by state legislation, whether or not it be labelled a legislative waiver of immunity. See Moor v. Madigan, supra 458 F. 2d at 1220. Federal liability can be created only by an affirmative act of Congress.

In short, Congress intended municipalities not to be encompassed within the term “person” as used in § 1983, at least for the purpose of damage suits. The decision to change what it enacted should remain exclusively with Congress itself. In such a posture consideration of the wisdom of making municipalities liable to suit under § 1983 when the parent state has removed governmental immunity and imposed liability on them for damages assessed against their employees acting in the scope of municipal employment would not be an appropriate course for us to pursue.

II.

We turn to the issue of pendent jurisdiction over the state law claim of indemnification against the City under Conn.Gen.Stats. § 7-465, which is contingent upon a judgment ultimately being entered in favor of appellant against the City officials. Judge Clarie declined to exercise such jurisdiction, and we think it was within his discretionary power to do so.

In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court considered the question whether a federal court, assuming it had the power to hear a state claim as pendent, should, after taking into account “considerations of judicial economy, convenience, and fairness to litigants,” exercise that power, id. at 726, 86 S.Ct. at 1139, and observed:

“That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” Id.

Applying these principles here, we find no abuse of discretion in the dismissal of the pendent claims against the City. See Patrum v. City of Greensburg, 419 F.2d 1300 (6th Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1125, 25 L.Ed.2d 398 (1970). Appellant phrases the issue as “whether a state law claim against a public entity can be pendent to a § 1983 action against one or more of the entity’s employees” and, answering in the affirmative, refers us to Eidschun v. Pierce, 335 F.Supp. 603 (S.D.Iowa 1971), where the court, after finding it had the power, chose to retain pendent claims against a city as § 1983 claims remained to be tried against municipal employees and the proof required to establish both sets of claims was essentially the same. In the present ease, however, the district court struck a different balance in weighing the factors of economy, convenience, and fairness, and we do not find its conclusion to be unsound.

We may assume for the purpose of review that there was power in the district court to hear pendent state claims against the City even though federal claims survived only against the other defendants, cf. Leather’s Best, Inc. v. Mormaclynx, 451 F.2d 800, 809-811 (2d Cir. 1971); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir. 1971), because we are convinced in any event that there were sound reasons for not retaining pendent jurisdiction over the City in this case as a matter of discretion. First, the City of Hartford notes in its brief that it “filed a statement with the Clerk of the District Court on June 8, 1971, that the municipality will pay any judgment entered in the action against named employees.” Secondly, there is no reason to assume that, if necessary, the state courts would not grant full faith and credit to any judgment obtained against the municipal officials in the federal court. Thirdly, if the City should contest its obligation to pay any judgment rendered against its employees, the issues of whether they were “acting in the performance of [their] duties and within the scope of [their] employment” and whether the damage was “the result of any wilful or wanton act” would likely be raised. Those issues concern the interpretation of a state statute and the Supreme Court reminded us in Gibbs that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.” 383 U.S. at 726, 86 S.Ct. at 1139. Moreover, to the extent that the standards to be applied and the proof required to meet them in order to render the City liable under the state statute differ from the standards and proof required to render the individual defendants liable under § 1983, any jury which might be empanelled would be subject to confusion which it would be best to avoid. Finally, there is the possibility that a jury might be prejudiced against the other defendants on the primary claims if it knew from the claim against the City as a defendant that it might be obligated as an indemnitor to pay for any judgment assessed.

Under these circumstances the district court was well within the bounds of allowable discretion in refusing to hear the state law claims against the City once the federal claim against it was dismissed before trial.

Affirmed.

      . 42 U.S.C. § 1983 provides:

        “Civil action for deprivation of rights

      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

      . Though the district court record before us does not so indicate, plaintiff, after the notice of this appeal was filed, was apparently granted leave to amend his complaint to substitute the name of Thomas Ganley for that of John Doe, as well as to name one Jesse Campbell as one of those not then known to plaintiff who was alleged, in plaintiff’s Eighth Cause of Action, to have conspired to conceal Ganley’s identity to deprive plaintiff of his right to damages under § 1983. The City of Hartford states that, following the filing of the substituted complaint, it has now filed an appearance on behalf of defendants Ganley and Campbell in addition to its representation of the other named defendants from the outset of this action. Appellees’ Brief 11. We, therefore, refer to Ganley by name hereafter.

      . The district court’s ruling is not officially reported. Gonzalez v. Doe, Civil No. 14,-383 (D.Conn.Dec. 1, 1971).

      . Section 7-465 provides in relevant part:

        “Assumption of liability for damage caused by employees

      “Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . . Any employee of such municipality, although excused from official duty at the time, for the purposes of this action shall be deemed to be acting in the discharge of duty when engaged in the immediate and actual performance of a public duty imposed by law. . . . Governmental immunity shall not be a defense in any action brought under this section. In any such action the municipality and the employee may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, files a statement with the court, which shall not become part of the pleadings or judgment file, that it will pay any verdict rendered in such action against such employee. No mention of any kind shall be made of such statement by any counsel during the trial of such action.”

      . The judgment entered February 29, 1972, ordered that “the plaintiff’s sixth and seventh causes of action [be dismissed] for failure to state a claim for which there is federal jurisdiction, and that the Court declines to exercise pendent jurisdiction, against the City of Hartford.” Though entered pursuant to a motion by the plaintiff, it was expressly based upon the court’s ruling, supra note 3, granting the “Motion To Dismiss Complaint As Against The Defendant, City of Hartford,” for failure to state a claim upon which relief can be granted. That ruling stated in pertinent part:
      “The plaintiffs may- proceed in this Court against the municipal employees under § 1983. State law damages for wrongful death and the claimed statutory indemnification of the defendant municipal employees, both as to state and federal judgments should be pursued in the state courts.”
      Despite the fact that the Sixth Cause of Action (the state wrongful death claim) is itself directed only against the municipal employees, under the complaint and the circumstances of the proceedings in this action thus far, we assume that the district court declined to exercise pendent jurisdiction only as to the City of Hartford. Accordingly, we restrict our review to the questions thus raised and express no view as to whether it would have been proper for the district court to have declined to exercise pendent jurisdiction as to the defendant City officials on the state wrongful death claims.

      . Conn.Gen.Stats. § 52-555 (1973 Supp.) provides:

        “Actions for injuries resulting in death “In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.”

      . See note 4 supra.

      . Section 1988 states, in pertinent part:
      “The jurisdiction in civil matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. ...”

      . It is true that equitable relief has been granted under § 1983 against municipal corporations by some courts, see, e. g., Adams v. City of Park Ridge, 293 F.2d 585, 587 (7th Cir. 1961); Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir.), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971); but see Zuckerman v. Appellate Division, 421 F.2d 625, 626 (2d Cir. 1970); Seergy v. Kings County Republican County Committee, 459 F.2d 308, 312-313 n. 6 (2d Cir. 1972). However, the legislative history relied upon by the Supreme Court in Monroe “focused primarily on damage actions against municipalities, and . . . should be read accordingly,” Comment, Injunctive Relief Against Municipalities Under Section 1983, 119 U.Pa.L.Rev. 389, 397 (1970). We are persuaded that prohibitory, as opposed to mandatory, injunctions might consistently with that history be granted against municipalities under § 1983, id. at 400, and that whatever the ultimate resolution of the question of injunctive relief under § 1983, cf. Monroe v. Pape, supra 365 U.S. at 191 n. 50, 81 S.Ct. 473, Comment, supra at 392, 393 n. 25; Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 158 n. 9, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), the immunity of municipalities from a § 1983 suit for damages, established in Monroe, remains viable and is not affected thereby.

      . Cf. Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn.L. Rev. 493, 514 (1955); Fuller & Casner, Municipal Tort Liability in Operation, 54 Harv.L.Rev. 437 (1941); Smith, Municipal Tort Liability, 48 Mich.L.Rev. 41, 50-51 (1949); Note, Grievance Response Mechanisms for Police Misconduct, 55 Va. L.Rev. 909, 925-27 (1969).

      . See Note, Carter v. Carlson: The Monroe Doctrine at Bay, 58 Va.L.Rev. 143, 159 (1972), implicitly suggesting the possibility that such a rule might lead to a statutory reimposition of municipal immunity in some states.

      . See notes 4 and 5 supra.

      . And see Fortune, Pendent Jurisdiction—The Problem of “Pendenting Parties,” 33 U.Pitt.L.Rev. 1 (1972); Note, 73 Colum.L.Rev. 153; Note, 81 Harv.L.Rev. 657, 662-64 (1968).

      . See note 4 supra.


author: TIMBERS, Circuit Judge:

text:
    GULF & WESTERN INDUSTRIES, INC., Plaintiff-Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant and Third-Party Plaintiff-Appellee, v. Charles G. BLUHDORN, Third-Party Defendant-Appellant and Kidder, Peabody & Co., Inc., Third-Party Defendant
    Docket No. 73-1223.
    United States Court of Appeals, Second Circuit.
    Argued March 8, 1973.
    Decided March 12, 1973.

      Whitney North Seymour, New York City (William J. Manning, John A. Guzzetta, Melvyn L. Cantor, George H. Hempstead, III, Cynthia M. Cohen, Patrick H. Barth, and Simpson, Thacher & Bartlett, New York City, on the brief), for plaintiff-appellant Gulf & Western Industries, Inc., and third party defendant-appellant Charles G. Bluhdorn.

      Denis McInerney, New York City (Raymond L. Falls, Jr., William T. Lifland, Henry G. Bisgaier, Allen S. Joslyn, Charles Platto, David A. Mead, and Cahill, Gordon, Sonnett, Reindel & Ohl, New York City, on the brief), for defendant and third party plaintiff-appellee The Great Atlantic & Pacific Tea Co., Inc.
    Robert F. Ambrose, Morton E. Grosz, Gerald A. Novack and Barrett, Smith, Schapiro & Simon, New York City, for The Josephine H. McIntosh Foundation, Incorporated, amicus curiae.
    George D. Reycraft, Eugene J. Leff, Boaz M. Shattan, Jr., and Cadwalader, Wickersham & Taft, New York City, for Neuberger & Berman, amicus curiae.
    Fred Lowenschuss Associates, Philadelphia, Pa., for Fred Lowenschuss Associates Pension Plan and Tendering Shareholders of A&P, amicus curiae.
    Before LUMBARD and TIMBERS, Circuit Judges, and WYZANSKI, District Judge.

       Senior District Judge of the District of Massachusetts, sitting by designation.

      . G&W’s motion claimed that A&P had violated the securities laws by false and misleading statements in both the February 2 press release and the February 3 letter to shareholders. The district court rejected G&W’s claims, based on the view “that the alleged omissions were not material omissions and that the plaintiff has failed to show a reasonable expectation of success on the trial of the issues so as to cause this Court to issue the preliminary injnction sought by G&W. Nor does this Court find these . issues so difficult and doubtful as to tip the balance of hardship toward G&W and thus warrant the issuance of injunction . . . . ” G&W has not appealed from the denial of its motion for a preliminary injunction.

   TIMBERS, Circuit Judge:

The issues before us on this appeal by appellants Gulf & Western Industries, Inc. (G&W) and Charles G. Bluhdorn, the chairman of the board, chief executive officer and largest stockholder of G&W, arise from a motion brought on by order to show cause in the District Court for the Southern District of New York before Kevin T. Duffy, District Judge, by The Great Atlantic & Pacific Tea Company. Inc. (A&P) for a preliminary injunction. A&P’s motion sought to enjoin consummation of a tender offer by G&W to purchase 3,750,000 shares of the common stock of A&P. The motion alleged that G&W’s proposed acquisition of A&P stock would violate Section 1 of the Sherman Act, 15 U.S.C. § 1 (1970), and Section 7 of the Clayton Act, 15 U.S.C. § 18 (1970); and that G&W’s tender offer was in violation of Sections 14(d) and 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78n(d) and (e) (1970), and of Rule 14d-1 promulgated under the 1934 Act, 17 C.F.R. § 240.14d-1 (1972).

G&W’s tender offer was announced February 1, 1973. Judge Duffy on February 6 signed an order to show cause bringing on A&P’s preliminary injunction motion for hearing on February 9. He heard the motion that day. On February 13, he filed a 21 page opinion granting the motion and on the same day entered a preliminary injunction enjoining consummation of the tender offer. On February 20, we granted appellants’ motion to expedite their appeal from Judge Duffy’s order. We heard the appeal on March 8.

For the reasons stated below, we affirm the preliminary injunction enjoining consummation of the tender offer.

I.

FACTS AND PRIOR PROCEEDINGS

G&W is a Delaware corporation. Its principal place of business is in New York City. It is the seventy-fourth largest industrial corporation in the United States. Its sales in 1972 totalled $1,669,671,000. It is one of the largest conglomerates, having acquired since 1957 approximately 100 previously independent companies. Bluhdorn has been at the helm of G&W since 1957.

A&P is a Maryland corporation. Its executive offices are in New York City. It operates one of the largest chains of retail supermarkets in the United States and is the largest such operator in the New York metropolitan area. Its sales in 1972 were approximately $6 billion.

At the time of the announcement of the tender offer which gave rise to the instant action, G&W was the owner of more than one million shares of A&P stock. A&P had 24,875,224 shares of common stock issued and outstanding. G&W thus had acquired more than 4 per cent of A&P’s stock. Those shares had been purchased on the open market in the year preceding the announcement of the tender offer. They were held in street name by Kidder, Peabody & Co., a brokerage firm. A&P was unaware of this substantial G&W interest in its stock.

On February 1, 1973, G&W announced its intention to make a cash tender offer for the acquisition at $20 per share of an additional 3,750,000 shares of A&P stock (approximately 15 per cent). As required by Rule 14d promulgated under the 1934 Act, G&W filed with the Securities and Exchange Commission a Schedule 13D on February 1. On the following day, the tender offer was communicated to the public.

A&P’s management reacted swiftly in opposition. On February 2, it issued a press release indicating A&P’s intent to “vigorously oppose” the tender offer. The release stated that not only was the $20 per share offer “inadequate and not in the best interest of [A&P’s] shareholders”, but that “it would seem that the acquisition of a large block of A&P shares by Gulf & Western raises most serious questions under the antitrust laws.” The press release was followed up the next day by a letter to A&P’s shareholders. Included in the letter were summary statements and statistics indicating that A&P was in a “turnaround” situation and that the G&W offer, by its “inadequate” terms, was an attempt “to purchase at a cheap price the value [in terms of upward potential] that rightfully belongs to [the A&P shareholders].” The implication of possible antitrust liability stated in the initial press release was repeated in the letter to shareholders.

On February 5, G&W commenced the instant action against A&P in the district court, alleging that A&P had made false and misleading statements in its opposition to the tender offer, in violation of Sections 10(b), 14(d) and 14(e) of the 1934 Act. G&W, simultaneously with the commencement of its action, presented an order to show cause bringing on its motion for a preliminary injunction against A&P. Also on February 5, A&P filed its answer, counterclaim and a third-party action against Bluhdorn and against Kidder, Peabody & Co., the dealer-manager for G&W’s tender offer. A&P’s counterclaim and its motion for a preliminary injunction alleged violations of the antitrust laws and the securities laws. Judge Duffy signed A&P's order to show cause on February 6 and made it returnable on February 9, together with G&W’s order to show cause referred to above. He denied applications by both sides for temporary restraining orders.

With respect to the antitrust violations, A&P alleged probable foreclosure and anticompetitive effects, both horizontal and vertical. It also alleged likelihood of unlawful reciprocal dealing.

The horizontal allegations were based on Bluhdorn’s interest in the Bohack Corporation, one of A&P’s major competitors in the New York area. Bohack is the second largest operator of retail supermarkets in the New York area, A&P being the largest. In the period immediately preceding the tender offer, Bluhdorn was the largest shareholder in Bohaek, he was a member of its board of directors, and, with three other G&W officers on Bohack’s board, Bluhdorn clearly had effective control of Bohaek. On February 1, the four G&W directors of Bohaek submitted their resignations from that board, and Bluhdorn placed all of his Bohaek shares in a voting trust. Under the final terms of that trust, in the event the tender offer is consummated, Bluhdorn’s shares in Bohaek must be sold by the trustees within one year after the expiration date of the tender offer.

In addition to the claim of horizontal market foreclosure, A&P alleged that success of the tender offer would create a probability of price-fixing between A&P and Bohaek. This was based on the September 1972 denouncement by Bohaek’s president, Joseph Binder, of A&P’s “WEO” (profit and price cutting) program as predatory and injurious to competition. That statement followed shortly after a private conversation between Bluhdorn and Binder. Binder, in addition, was named one of the two trustees of the voting trust.

■ The basis of A&P’s vertical claim is that G&W, among its myriad conglomerate holdings, has a number of companies that deal in products of which A&P is a purchaser. A&P alleges the “potential exclusion of other suppliers of A&P if G&W affiliates are able to provide the same products or services on equal terms.” The scope of such vertical foreclosure was alleged to be upwards of $100 million. A&P also alleged the likelihood of unlawful reciprocity, in that A&P suppliers might be expected to direct their purchasers toward G&W affiliates in the hope of increasing sales to A&P. G&W’s main response to the vertical and reciprocal charges was evidence of established corporate policy against such practices.

The alleged securities law violations generally charged G&W with omissions from the tender offer of material facts in contravention of Sections 14(e) and 14(d) of the 1934 Act. As summarized by the district court, the Section 14(e) claim was as follows:

“[T]hat the published tender offer and Schedule 13D filed with the Securities and Exchange Commission by G&W, omitted certain material facts in that they failed to disclose G&W’s intention to acquire dominance of the A&P; that it failed to disclose that Bohaek was the largest competitor of A&P in the New York City metropolitan area; and that Bluhdorn had effective control of Bohaek; it failed to disclose the existence of a consent decree between Bohaek and the Federal Trade Commission; and it failed to adequately describe G&W’s business, including, in particular, the areas in which G&W controls companies producing products which are actual or potential suppliers of A&P.”

The Section 14(d) charge alleged a failure by G&W to file a Schedule 13D in advance of its pre-tender offer purchases. A&P asserted that during the course of those purchases G&W had “formed the intention and embarked on a program to acquire more than 5% of the outstanding common stock of A&P.”

After approximately two days of depositions, the district court heard on the same day the motions for preliminary injunctions brought on by G&W and A&P, respectively. The record before the court consisted of the testimony of three witnesses, depositions, affidavits and documentary exhibits. Four days after the hearing, the court denied G&W’s motion for a preliminary injunction, but granted A&P’s motion for a preliminary injunction against G&W and Bluhdorn. The only appeal before us is from the order granting A&P’s motion.

The essential question before us on this appeal is whether the record supports the district court’s order which granted a preliminary injunction enjoining consummation of the tender offer. We hold that it does.

II.

PRELIMINARY INJUNCTION STANDARD

We repeatedly have held that the two-fold requirement for a preliminary injunction is a demonstration of probability of success on the merits and a showing that irreparable harm will result if such relief is denied.

Recently we have emphasized the importance of demonstrating on a preliminary injunction motion the presence of serious questions going to the merits which warrant further investigation and trial. For example, in Stark v. New York Stock Exchange, 466 F.2d 743 (2 Cir. 1972), we recently stated:

“Appellants assumed the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that they had raised serious questions going to the merits and that the balance of hardships tipped sharply in their favor.” 466 F.2d at 744.

And in Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319 (2 Cir.), cert. denied, 394 U.S. 999 (1969), the standard which we find particularly applicable here was set forth as follows:

“The purpose of a preliminary injunction is to maintain the status quo pending a final determination of the merits . . . . It is an extraordinary remedy, and will not be granted except upon a clear showing of probable success and possible irreparable injury (emphasis that of the Court) . However, ‘the burden [of showing probable success] is less where the balance of hardships tips decidedly toward the party requesting the temporary relief.’ Dino De Laurentiis Cinematografica, S. p. A. v. D-150, Inc., 366 F.2d 373, 375 (2 Cir. 1966). In such a case, the moving party may obtain a preliminary injunction if he has raised questions going to the merits so serious, sub stantial, and difficult as to make them a fair ground for litigation and thus for more deliberate investigation. Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 205 (2 Cir. 1966); Dino De Laurentiis Cinematografica, S. p. A. v. D-150, Inc., supra; Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2 Cir. 1953).” (emphasis added) (some citations omitted). 405 F.2d at 323.

Moreover, in government antitrust actions involving alleged Clayton Act violations, a “balancing of the equities — in terms of injury to the public interest if an injunction were denied, as against injury to the defendants if it were granted — is a relevant factor, once the probability of success standard has been met, in deciding whether to deny or grant injunctive relief.” United States v. International Telephone & Telegraph Corp., 306 F.Supp. 766, 797 n. 95 (D. Conn.1969), appeal dismissed, 404 U.S. 801 (1972), and cases there cited. In the instant case, the magnitude and far reaching consequences of the alleged violations of the antitrust and securities laws are such that, in our view, the public interest requires the application of a like standard.

With this standard in mind, we turn directly to a consideration of the substantiality of the alleged violations of the antitrust and securities laws, and the probability of A&P’s success on the merits on such claims after trial; and then, depending upon our conclusions on that issue, we shall consider the balance of equities as between the parties, keeping foremost in mind the paramount public interest.

III.

PROBABILITY OF SUCCESS ON THE MERITS

(A) Claims of Antitrust Law Violations

The antitrust claims of A&P are based on Section 7 of the Clayton Act which provides in relevant part:

“No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock ... of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”

At this stage of the litigation, we of course need not decide whether A&P has proven a violation of that provision. We are required, however, to decide whether the evidence at the hearing below demonstrated that A&P’s allegations were of sufficient substance to warrant an examination of the other requirements necessary to the grant of preliminary injunctive relief.

G&W’s primary defense to the Section 7 claims is that the evidence demonstrated that its tender offer comes within the proviso to that section — to wit, that its offer to purchase A&P stock is “solely for investment and not ... to bring about . . . the substantial lessening of competition.” Section 7, jf 3. In arguing for a broad definition of “investment”, G&W relies on Pennsylvania R.R. Co. v. ICC, 66 F.2d 37 (3 Cir. 1933), aff’d per curiam by equally divided Court, 291 U.S. 651 (1934). In our view, however, that case says no more than that the court’s attention should be focused less on whether the purchase constitutes an “investment” than on whether the effect (indeed at this juncture the reasonably likely effect) is substantially to lessen competition.

G&W next contends that each of the potential anticompetitive effects claimed by A&P depend on the attainment of control by G&W. Put another way, the argument is that, without control over the policies and practices of A&P, the feared horizontal, vertical and reciprocal practices are no more likely to occur than they were with G&W entirely out of the A&P corporate picture.

We reject that contention both on the facts and on the law. Factually, it must be remembered that the reciprocal allegations relate to the actions of third-parties — in this case, suppliers of A&P who might determine that it would be in their best interest to purchase whenever possible from G&W companies. It is the third-parties’ perception of what course would be to their best advantage that may give rise to reciprocal dealing by creating a market structure conducive to reciprocity or reciprocity effect. Particularly with companies of the size and power of those here involved, “the actual or potential implementation of coercive reciprocity, which presupposes the existence of leverage, is inimical to a competitive economic society.” United States v. General Dynamics Corp., 258 F.Supp. 36, 59 (S.D.N.Y.1966).

Furthermore, with respect to all the antitrust claims, we are satisfied that the record demonstrates a substantial likelihood that G&W will seek to obtain control of A&P and that it has the potential to attain that goal. Our views in this regard are more fully set forth in our discussion of the securities law claims below.

As a matter of law, we are not aware of any decision that requires numerical control in order to establish an antitrust violation. Several cases have held to the contrary. E.g. American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F.Supp. 387, 393 (S.D.N.Y.1957), aff’d, 259 F.2d 524 (2 Cir. 1958); Hamilton Watch Co. v. Benrus Watch Co., 114 F.Supp. 307, 317 (D. Conn.), aff’d, 206 F.2d 738 (2 Cir. 1953). Rather, the critical question is whether the probable future effect of the transaction will be substantially to lessen competition. Brown Shoe Co. v. United States, 370 U.S. 294, 332 (1962); United States v. Von’s Grocery Co., 384 U.S. 270, 278 (1966).

In assessing that issue, we turn now to the allegations of vertical integration. In discussing the vertical claim by way of illustration, we do not indicate any view as to the relative strength of that claim vis-a-vis the other antitrust claims asserted by A&P.

The leading case in the vertical area of course is Brown Shoe Co. v. United States, supra, in which the Supreme Court held unlawful under Section 7 a merger between a leading shoe manufacturer and a leading shoe retailer. We find the present case sufficiently similar to that one to permit a conclusion that A&P has shown a reasonable likelihood Of success on the vertical claim at the trial on the merits.

Passing over the essential, but here uneontested, definition of the relevant product and geographical markets, the issue centers on the probable effect of the acquisition by G&W of over 19% of the A&P shares. As in Brown Shoe, “[a] most important . . . factor to examine is the very nature and purpose of the arrangement.” 370 U.S. at 329. Here, the record before us supports the conclusion that the purpose of the acquisition is very likely to provide a basis for eventual control of A&P by G&W. The record further supports the conclusion that the nature of the post-acquisition arrangement will be such as to give G&W a substantial advantage over its competitors in the sale to A&P of products which the latter either uses or retails and which G&W can supply.

In support of those conclusions, the record here discloses many of the same troublesome ingredients that led to the Brown Shoe decision: the tender offer here “involve[s] neither small companies nor failing companies”, 370 U.S. at 331; because of the absolute size of the firms involved “in this industry, no merger between a manufacturer and an independent retailer could involve a larger potential market foreclosure”, 370 U.S. at 331-32; and the trend toward concentration of the industry has been well-documented, 370 U.S. at 332. Furthermore, in light of the present production capacity of A&P and the great possibilities for expansion, the potential foreclosure is well above the “de minimis” level.

The import of these views, once again, is not that A&P is necessarily correct in its allegations of a vertical integration in violation of the antitrust laws. Rather, we hold only that a sufficient likelihood of success- on that claim has been demonstrated to satisfy A&P’s burden on the motion for preliminary injunction.

(B) Claims of Securities Law Violations

A&P claims that G&W has violated Section 14(e) of the Securities Exchange Act of 1934 by omitting certain material facts from its tender offer announcement: (1) G&W’s intention to acquire a controlling position in A&P or at least to exercise influence over A&P’s management and policies; and (2) G&W’s holdings in other companies which indicate that G&W’s acquisition of A&P stock is likely to result in violations of the antitrust laws by both companies. The question here is whether, on the basis of the evidence presented below, it appears that A&P stands a strong chance of proving at trial that G&W’s failure to disclose these facts in its announcement of the tender offer violated § 14(e). We hold that A&P has demonstrated a probability of success on the merits with regard to its § 14(e) claim.

While § 14(e) is a relatively new statute, in general it tracks the language of Rule 10b-5, 17 C.F.R. § 240.10b-5 (1972), except that § 14(e) applies to tender offers rather than the purchase or sale of securities. The elements of an action for injunctive relief are essentially the same under § 14(e) as under Rule 10b-5. See Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341, 362 (2 Cir. 1973), slip op. 4897, 4929-30 (March 16, 1973). With respect to A&P’s § 14(e) claim, in order to succeed at the trial on the merits, A&P need only establish that the omissions were material and that “ ‘any of the stockholders who tendered their shares would probably not have tendered their shares’ if the alleged violations had not occurred.” Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 948 (2 Cir. 1969), quoting Symington Wayne Corp. v. Dresser Industries, Inc., 383 F.2d 840, 843 (2 Cir. 1967).

There can be no doubt that if G&W intended, when it announced its tender offer, to take control of A&P or to participate extensively in its management, its failure to disclose that intention constituted a violation of § 14(e). Cf. Susquehanna Corp. v. Pan American Sulphur Co., 423 F.2d 1075, 1082-86 (5 Cir. 1970). Any of the tendering shareholders who did not tender all of their A&P holdings to G&W would be influenced in their decision whether or not to tender by the fact that G&W would eventually control or substantially influence the operations of A&P. For example, such shareholders might be disinclined to facilitate G&W’s takeover attempt, if it were to create a substantial risk that their remaining holdings in A&P would suffer a decline in value, because present management would be replaced by less efficient G&W management. On the other hand, they might want to retain all their shares because of their belief that the incoming management team would be superior. In short, G&W’s intentions with regard to directing A&P’s policies and operations, are of such significance that the tendering shareholders would have weighed them in their decision whether or not to sell. Moore v. Greatamerica Corp., 274 F.Supp. 490, 492-93 (N.D.Ohio 1967).

Considerable evidence was adduced at, the hearing which indicates that G&W purchased A&P stock not for the purpose of investment but with a view to exercising influence or control. Proof of such intent obviously is difficult, particularly where only limited discovery is possible, as in the case below due to the time limitations. Nevertheless, the Bluhdorn deposition, as well as other evidence adduced, strongly indicates that such intent was present. G&W has a well-established practice of eventually acquiring firms in which it initially purchased only a small percentage of the outstanding shares. It is likely that this acquisition practice will be applied to A&P, especially since G&W’s present commitment to purchase A&P shares represents the largest single commitment in G&W’s history. In addition, A&P is such an “overpriced” and “rundown” corporation, in the opinion of Bluhdorn, that it could not possibly succeed as an “investment”. But since in Bluhdorn’s view much of A&P’s difficulty is attributable to its present management, it is the type of company that probably would make a sound acquisition with a replacement of management. Bluhdorn indeed remarked that his “Bohack management team” possessed the skills and experience necessary to cause a turnaround of A&P. These facts and circumstances indicate that A&P has a probability of success in proving at trial that G&W had an intention to obtain control of A&P or to influence substantially its management, which intentions it failed to disclose in violation of § 14(e).

It also appears that G&W omitted to state certain material facts indicating that there are substantial antitrust obstacles to G&W’s purchasing a large portion of A&P’s shares. As stated above, Bluhdorn’s ownership of a controlling interest in Bohaek, combined with G&W’s large purchases of A&P stock, creates a strong likelihood of antitrust litigation to prevent unlawful foreclosure of competition in the supermarket business. G&W also owns or controls several companies which are actual or potential suppliers of A&P, and apparently has plans to expand such operations so as to take advantage of its shareholder position in A&P. We have discussed above the exposure of G&W to potential antitrust liability for engaging in unlawful vertical integration.

The facts that, at the time it announced its tender offer, an antitrust action had not been commenced against G&W, and that its liability was uncertain, does not excuse G&W’s failure to disclose all these relevant circumstances so that A&P shareholders could weigh them in reaching their decision whether or not to tender their shares. As we said in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2 Cir. 1968) (en banc), cert. denied sub nom. Kline v. SEC, 394 U.S. 976 (1969), the disclosure requirements of the securities laws require “nothing more than the disclosure of basic facts so that outsiders may draw upon their own evaluative experience in reaching their own investment decisions with knowledge equal to that of the insiders.” Those “basic facts” bearing upon G&W’s possible liability for antitrust violations were of obvious concern to those A&P shareholders who retained part of their holdings.

We hold that the record before the district court demonstrated a probability of A&P’s success on the merits on its claims of securities law violations.

IV.

BALANCING THE EQUITIES

Having determined that A&P has established a probability of success on the merits at trial on at least some of its claims, we turn now to a consideration of the balancing of the equities.

(A) Interest of A&P

The district court’s opinion indicates that above all else its conclusion was based on its perception of the harm that would accrue to A&P in the absence of preliminary relief:

“[T]o permit the tender offer to go forward could have serious detrimental effects on A&P. It is possible that A&P would be involved in a violation of the antitrust laws. There is testimony in the record that the executives of A&P have already suffered a tremendous downgrading of morale with just the suggestion that the company was about to be taken over by G&W. Moreover, if this Court permitted the tender offer to be consummated and at some later date were to find the violations charged by A&P, it would be almost impossible to unravel the situation.”

We agree. Moreover, considering the entire record, that is a finding that certainly cannot be said to be clearly erroneous.

(B) Interest of G&W

The only interest of G&W urged upon us that bears on the propriety of the preliminary injunction is that G&W has the right to invest on behalf of its shareholders at such time as it deems ripe and profitable. Certainly this is one factor to be considered and we have done so. But we think that it is important, in weighing this interest, to bear in mind that (1) the interest urged can only be so where a lawful acquisition or investment is involved; and (2) the preliminary relief granted is not nearly as final as G&W urges. Here, the probability that the “investment” is unlawful, as shown above, is sufficiently strong to call into serious question G&W’s right to proceed with the tender offer. Further, if after trial on the merits G&W is vindicated, it will not be foreclosed from renewing its tender offer. While that may be said to be something less than a full blessing for G&W, its right to act at will is not absolute. In a case of strong likelihood of unlawfulness, that right must be at least temporarily subordinated.

(C) Interest of A&P Shareholders

In Butler Aviation International, Inc. v. Comprehensive Designers, Inc., 425 F.2d 842, 845 (2 Cir. 1970), we said:

“While courts should vigorously enforce the policy of honesty and fair dealing prescribed by federal securities legislation, they must guard against the risk that, at the instance of incumbent management, they may be frustrating informed stockholders from doing what the latter want.”

We have given careful attention to that consideration here. What we said in Butler Aviation, however, clearly presupposes that the shareholders are indeed informed — a premise which we have indicated above has been drawn into serious doubt in this case. A&P shareholders, moreover, like G&W, have no inherent right to proceed with an unlawful tender; a requirement of lawfulness is included by implication in every tender offer.

(D) Interest of the Public

Finally, in balancing the equities, the public interest must be considered. If G&W is in fact proceeding in violation of the antitrust and securities laws, a preliminary injunction would serve the public interest as much as A&P’s private interests. In this regard, by asserting these claims, A&P is assuming a dual role, including that of a private attorney general. Since it is impossible as a practical matter for the government to seek out and prosecute every important violation of laws designed to protect the public in the aggregate, private actions brought by members of the public in their capacities as investors or competitors, which incidentally benefit the general public interest, perform a vital public service. As the Supreme Court said in J. I. Case Co. v. Borak, 377 U.S. 426, 432 (1964), private actions provide “a necessary supplement” to actions by the government and “the possibility of civil damages or injunctive relief serves as a most effective weapon in the enforcement” of laws designed to protect the public interest. Therefore, as in actions brought by the government, doubts as to whether an injunction sought is necessary to safeguard the public interest — when the public interest involved is as clear, pervasive and vital as the record here demonstrates — should be resolved in favor of granting the injunction. See United States v. First National City Bank, 379 U.S. 378, 383 (1965); Mitchell v. Pidcock, 299 F.2d 281, 287 (5 Cir. 1962).

In our view, the present case involves precisely that strong showing of public interest which we hold is paramount.

■ Upon balancing the equities in accordance with the standard stated above, we hold that the record clearly supports the district court’s order which granted a preliminary injunction enjoining consummation of the tender offer.

Under all the circumstances, we suggest to the district court that it expedite further proceedings in this case, as it so commendably has done to date, with a view to the earliest possible date for trial on the merits consistent with the rights of the parties. We are confident that counsel will fully cooperate to that end.

Finally, we express our appreciation to able counsel for all parties for their excellent briefs and oral arguments which have facilitated our task on this expedited appeal.

Affirmed.

      . We set forth below a more complete statement of the litigation sequence that preceded this motion, including the plenary action out of which the motion arose.

      . The tender offer reserved to G&W the right to purchase any shares tendered in excess of that amount. At the hearing in the district court, however, G&W informed the court that it would accept no more than 3,750,000. G&W accordingly has returned all shares tendered in excess of that amount.

      . The voting trust as originally drafted required disposal of the shares “[i]f G&W becomes the controlling shareholder of A&P”, defined as either being the “largest single holder of common stock of A&P” or having “a majority of the members of the Board of Directors of A&P . . . designees of G&W.” (emphasis added).

      . The specific items involved include paper goods, produce and meat, refrigeration equipment, and cigars, each of which is a category of goods which A&P purchases and G&W can supply. It is further alleged that various financial services offered by G&W, not currently utilized by A&P, present further vertical foreclosure potential.

      . The following depositions were taken, each of which was received in evidence without objection at the preliminary injunction hearing: Charles G. Bluhdorn (Chairman of the Board and Chief Executive Officer of G&W) (by A&P); Joel Dolkart (General Counsel and Director of G&W) (by A&P); Ralph D. DeNunzio (Chairman of the Executive Committee of Kidder, Peabody & Co.) (by A&P); William J. Kane (Chairman of the Board and Chief Executive Officer of A&P); (by G&W); and Byron Jay (former Chief Executive Officer of A&P, and Trustee of the Hartford Foundation) (by G&W).

      . G&W called no witnesses, except that it cross-examined M. Dean Potts (Comptroller of A&P) on his affidavit. A&P called as witnesses William J. Kane, see note 6, supra; and John Guest, a member of the brokerage firm of Kuhn, Loeb & Co., who testified to a conversation with Bluhdorn concerning a proposed purchase of the Hartford Foundation’s A&P shares.

      . The court denied that portion of A&P’s motion which sought a preliminary injunction against Kidder Peabody on the ground that “[t]here is no showing that Kidder Peabody was acting as anything but a stockbroker for G&W. Apparently it had no knowledge of any possible wrongdoing by G&W and Bluhdorn.” No issue is before us on this appeal regarding Kidder Peabody, since no appeal has been taken from the denial of A&P’s motion for a preliminary injunction against it.

      . G&W’s argument that, aside from its asserted lack of intent, there is no possibility of gaining control is not supported by the record. That contention rests on the premise that the Hartford Foundation, and the various shareholding members of the Hartford family, together form a monolithic block with considerably more than 50% of the outstanding shares. The district court concluded that the evidence showed no block voting among the various Hartford interests. We agree.
      At the argument of this appeal, moreover, we were informed that the Foundation was not unwilling to reduce its interest. Upon the announcement of the tender offer, the Foundation voted to tender some 1.5 million shares to G&W. On February 14, it actually did tender 500,000 shares, although these shares were returned by G&W due to the oversubscription of the tender offer at that time.
      We note further that under the provisions of Section 4943 of the Tax Reform Act of 1969, 26 U.S.C. § 4943 (1970), the Hartford Foundation is in a position where divestment of a sizeable portion of its A&P holdings soon will be highly probable. In short, we find no basis in fact for the argument that the current dominance of the various Hartford interests precludes G&W control of A&P at some future date.

      . In Denver & Rio Grande Western R. R. Co. v. United States, 387 U.S. 485, 501 (1967), the Court held that, while the ICC’s duty to consider anticompetitive effects of the acquisition of stock of a common carrier under Section 5 of the Interstate Commerce Act, 49 U.S.C. § 5 (1970), “arises only after the threshold fact of control is established, [n]o such preliminary finding need be made to trigger the ICC’s duty under the Clayton Act. A company need not acquire control of another company in order to violate the Clayton Act.” See also United States v. B. I. duPont deNemours & Co., 353 U.S. 586 (1957).

      . While A&P’s recent performance may be said to have been lackluster, the data provided in its own response to the tender offer negates any possible claim that it is “failing”.

      . The FTC has found distinct trends toward concentration in both the food distribution and grocery products manufacturing industries. 1 CCH Trade Reg. Rep. ¶ 4525, at 6904; ¶ 4530 at 6908 (1971).

      . Section 14(e) reads in pertinent part:
      “It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders-, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation.”

      . Our Court has had occasion to construe § 14(e) on at least four previous occasions. Butler Aviation International, Inc. v. Comprehensive Designers, Inc., 425 F.2d 842 (2 Cir. 1970); Crane Co. v. Westinghouse Air Brake Co., 419 F.2d 787 (2 Cir. 1969), cert. denied, 400 U.S. 822 (1970); Iroquois Industries, Inc. v. Syracuse China Corp., 417 F.2d 963 (2 Cir. 1969), cert. denied, 399 U.S. 909 (1970); Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937 (2 Cir. 1969). See Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341, 357 (2 Cir. 1973), slip op. 4897, 4920-59 (March 16, 1973).
      A&P’s standing, as the target corporation of a tender offer, to bring suit under § 14(e) for a preliminary injunction against G&W, the offeror, is clear. Butler Aviation International, Inc. v. Comprehensive Designers, Inc., supra, 425 F. 2d at 843 n. 1; Susquehanna Corp. v. Pan American Sulphur Co., 423 F.2d 1075 (5 Cir. 1970). See also Electronic Specialty Co. v. International Controls Corp., supra, 409 F.2d at 940-41, 944-46.

      . That there are shareholders in this situation is clear from the record. The Josephine H. McIntosh Foundation, for example, tendered only 200,000 of its total 1,100,000 shares of A&P common stock.

      . Former SEG Chairman Cohen has made some especially relevant comments on the importance of disclosing an intended change of control:
      “Information about a potential change in control can be particularly essential to an informed decision. A change in control brings with it the possibility of different operating results and different investment results, or perhaps the possibility of realizing on a company’s liquidation value. This may be either good, or bad, depending on the facts and circumstances involved. But no investor can reach a conclusion on the possible effects of a change in control until the facts are available to him.” See Cohen, A Note On Takeover Bids and Corporate Purchases of Stock, 22 Business Lawyer 149, 151 (1966), quoted in, Moore v. Greatamerica Corp., supra, 274 F.Supp. at 493.

      . As additional basis for this inference (at least as of an earlier date), see note 4, supra.

      . It appears that G&W also has failed to comply with the requirements of Section 14(d) of the 1934 Act and Regulations 14d-1 through 14d-4, 17 C.F.R. §§ 240.14d-1 to 14d-4 (1972). Section 14(d) requires that a tender offer which will result in more than 5% ownership of the target company cannot be made until the offeror files a Schedule 13D with the Commission providing specified information. Item 4 on Schedule 13D in part requires that the following information be provided:
      “Item 4. Purpose of Transaction.
      State the purpose or purposes of the purchase or proposed purchase of securities of the issuer. If the purpose or one of the purposes of the purchase or proposed purchase is to acquire control of the business of the issuer, describe any plans of proposals which the purchasers may have to liquidate the issuer, to sell its assets or to merge it with any other persons, or to make any other major change in its business or corporate structure.....”
      G&W did not supply such information— in violation of § 14(d).

      . G&W argues that after April 3 the tendering shareholders have the right to withdraw their tendered shares, thereby effectively destroying the tender offer. Suffice it to note that the provision of the Williams Act referred to, 15 U.S.C. § 78n(d) (5) (1970), merely gives shareholders the option of withdrawing; it says nothing about re-solicitation of those shares; and indeed it authorizes adding to the attractiveness of the tender offer. 15 U.S.C. § 78n(d) (7).