author: BAZELON, Chief Judge:

text:
    NATIONAL CABLE TELEVISION ASSOCIATION, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION.
    No. 24786.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 13, 1972.
    Decided April 17, 1973.

      Charles S. Walsh, Washington, D. C., with whom Gary L. Christensen, Washington, D. C., was on the brief, for appellant.
    Leonard Schaitman, Atty., Dept, of Justice, with whom L. Patrick Gray, III, Asst. Atty. Gen., at the time the brief was filed, Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and Walter H. Fleischer, Atty., Dept, of Justice, were on the brief, for appellee. Richard E. Wiley, Gen. Counsel, F. C. C. at the time the record was filed, John H. Conlin, Associate Gen. Counsel, F. C. C., and Robert V. Zener, Atty., Dept, of Justice, also entered an appearance for appellee.
    Before BAZELON, Chief Judge, ROBINSON, Circuit Judge, and WILLIAM J. JAMESON, Senior U. S. District Judge for the District of Montana.

       Sitting by designation pursuant to Title 28, U.S.C. § 294(d).

   BAZELON, Chief Judge:

This appeal involves the meaning of the requirement under the Freedom of Information Act that documents be “identifiable” before disclosure is required. On March 2, 1970, the National Cable Television Association (NCTA) requested that the Federal Communications Commission allow inspection of several classes of documents that related to a proposed Commission rulemaking. When the Commission refused, the NCTA brought this suit in the District Court for a stay of the rulemaking and for an order to produce the documents.

Immediately before the hearing for preliminary relief in the District Court, but after the period allowed by the Commission for comments on the rules, the Commission filed a motion and memorandum alleging that “circumstances” had changed, proffering a number of the documents theretofore denied, and requesting dismissal or summary judgment.

The District Court denied the motion for preliminary relief and no appeal was noted. It held two hearings, received testimony from Commission staff members, and granted summary-judgment for the Commission on the following oral statement:

To me, what you are seeking are the work papers and internal memo-randa of this agency to which I do not believe you are entitled. What you want are the tapes, the yellow work sheets and possibly to pick somebody’s brain. I do not think you have made out a case.

We reverse. Summary judgment may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law. To prevail, the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.

Measured against this requirement, summary judgment was improper. Some of the facts necessary to the Commission’s defenses find no support in the evidence and others of those facts are directly contradicted by evidence elicited by the NCTA.

I. The Rulemaking Proceeding

On February 19, 1970, ■ the Federal Communications Commission released a Notice of Proposed Rule Making which set forth an alteration — and substantial increase — in its license “fee schedule.” The February Notice proposed extension of fees beyond applicants for licenses to also include operators of community antenna television (CATV) systems and users of the Commission’s radio frequency equipment testing services. It also proposed that the fees, which had previously been designed to reimburse the government for twenty-five percent of the Commission’s budget, be raised approximately three hundred percent, thus making the Commission self-supporting.

The result was a predictable storm of protest. At first directed at the Commission’s power to impose the fees, the attack eventually shifted to the way in which the proposed scheme would allocate the costs of regulation among the regulated industries and their constituent members. In response to the latter, the Commission issued a Supplemental Notice in March of 1970. The March Notice purported to provide a breakdown of the costs of operating the Commission into the cost of operating each of its six major offices and bureaus.

Taken together, the February and March notices asserted that the proposed schedule would assess each Commission-regulated industry in accordance with a formula that may be briefly described. The cost of operating each office with direct responsibility for regulating an industry was computed. Next, that part of the cost of each office without a direct regulatory responsibility that could be directly traced to a particular industry was charged to that industry. Then all remaining costs were lumped together and each was assigned a share of that cost equal to its percentage share of the directly assigned costs. Finally, the sum of these items, called the “cost factor,” was adjusted to reflect certain intangibles, such as the “value to the recipient” of the privileges granted it by the Commission.

After setting forth this generalized explanation of its approach, however, the Commission failed to supply specifics, either as to the facts from which it had reasoned or as to the mechanical steps it had taken in deriving the final schedule.

Without data concerning the Commission’s costs, it is not possible to determine the basis upon which the Commission allocated its direct and indirect costs among the regulated industries. Without disclosure of the final amount the Commission intended to recover from each industry, it is not possible to determine what, if any, noncost adjustments were made and whether the final schedule had any relation to the cost allocation. And without a definition and quantification of “value to the recipient” it is not possible to determine why and how the Commission might be deviating from a pure system of cost allocation. Thus, the Commission insulated itelf from external criticism of its method and rationale, leaving nothing open to challenge except the legality of its result.

The NCTA, as the chief trade association of the CATV industry, wished to file comments concerning the proposed fee schedule. Faced with the opaque notices just described, it requested an opportunity to inspect several categories of documents that the NCTA believed the Commission would have in its files. One category was “the documents, listings and records used to determine the ‘ “value to the recipient” of the privileges granted’ as referred to in the [February] Notice.” The other catego-ríes all related to the facts and reasons that supported the “cost factor.”

II. The Documents Sought by the NCTA

As a consequence of the Commission’s midnight production of most of the requested materials, after the close of the rulemaking but prior to the first hearing in the District Court, only three of the categories remained to be considered by the Court. Since the District Court’s ruling does not indicate the grounds on which it based its grant of summary judgment, we must examine the record on each of these categories.

A. The Two “Cost Factor” Categories The February Notice stated that the total cost of regulation was that stated in the Commission’s budget for the relevant year. Thus, the NCTA’s request to inspect documents was phrased in terms of classes of documents that supported the budget and the allocation of budgeted costs among the regulated industries. The first two categories requested were:

1. The supportive documents used to arrive at the Commission’s budget for fiscal year 1971 ;
2. The documents, listings and records used to determine the “direct and indirect cost to the Government” of the privileges granted the CATV industry for fiscal year 1971.

Access to the first group of documents would permit the NCTA to check the accuracy of the Commission’s breakdown of its costs. Access to the second would enable it to determine which parts of the budget had been assigned to the cost of CATV regulation, and compare them with the budget breakdown to determine whether all of the costs assigned to CATV were consistent with the budget. By adding together the costs listed under the second category, the NCTA would be able to challenge both the fairness of the charge and the accuracy of the Commission’s addition.

In response to the first item, the Commission provided the NCTA with a copy of its budget “request,” a document prepared for the Bureau of the Budget. The “request” itemized the Commission’s proposed expenditures for fiscal year 1971, but requested fifty percent more money than the Bureau finally cleared for submission to Congress as the “budget.” The Commission produced nothing in response to the second item.

At the hearing in the District Court, the Commission produced the head of its budget office for examination by the NCTA. Asked for an explanation of the Commission’s procedures, he testified that he had prepared the budget “request” from a variety of documents submitted by the Commission’s various organizational units, in accordance with a memorandum of instruction from the Commission itself. He further testified that these documents were still in the possession of the Commission, but he argued that these were not “supporting” documents to the final budget, apparently on the theory that the budget “request” had intervened. The latter, he said, “is really the supportive document” for the Congressional budget.

The second request was for the documents that supported the assignment of part of the Commission’s budgeted costs to CATV. The Commission’s witness testified that there were no such documents. He said that he had compiled the relevant data from the budget by using yellow sheets of paper and adding machine tapes, and had preserved only the final totals. These, he testified, were the figures included in the March Notice. The NCTA avowed that it could not duplicate the Commission’s figures by this means. While we can sympathize with this statement, for the reason that there appear to be contradictions in this account of the Commission’s procedures, we think that the Commission has adequately shown that there exist no documents in the category specified in the second request.

B. The “Value to the Recipient” Category

The Commission produced the official who had originally refused the NCTA’s request for inspection to testify on the request for “documents, listings and records used to determine the ‘value to the recipient’ of the privileges granted” by the Commission. Adhering generally to the affidavit he had filed in support of the motion for summary judgment, this witness testified that the Commission itself, after receiving from its budget office a figure for the total “cost factor” for each industry, worked from this to obtain the fee schedule by taking account of statutority designated factors, including “value to the recipient.”

He stated that, as set forth in his letter to the NCTA on behalf of the Commission, the Commission had relied upon “the knowledge and financial aspects of the communications industry acquired over the years from vast numbers of confidential financial statements, confidential staff memoranda, and various trade publications.” While asserting that the Commission had only relied on them “in part” for its noncost adjustments, he did testify that the Commission still had these documents. He added that the NCTA had been denied them because the request “was so indefinite that it was difficult to identify and assemble without totally unreasonable expenditure of Commission manpower.” Also, he said, some of the documents were confidential. Elaborating with respect to the internal memoranda, he said:

[Q. W]ith respect to the approach taken, the degree used, is there a conclusion reached [in the memoranda] as to the approach as to the degree of value with respect to the CATV industry, all of them mentioned in the Commission’s rule making proposal ? Were any factual conclusions reached that were put on paper?

A. It’s very difficult to distinguish between actual conclusions and an opinion of the writer, an advocacy of a certain point of view. This is a very sensitive program and there were some very strongly held views amongst the staff and amongst the Commissioners; and these internal staff memoranda contain these views and these advocacies.

Insofar as the NCTA’s request went to the trade publications and the “confidential financial statements,” no further testimony was taken. Since the witness had testified that no “financial statements” had been received from the CATV industry, it is possible that the NCTA does not want to inspect them. Indeed, the Commission’s affidavit broadly asserted that CATV is “NCTA’s sole concern” — although this could either be a representation of NCTA’s position or a claim, contrary to the Act, that NCTA needed a more direct interest to support a right to inspection.

But, since the NCTA could hardly comment on the adjustments for “value to the recipient” without knowing the comparative status of other assessed industries, the NCTA’s request seems more likely to encompass all of the Commission’s supporting documents. And, since the actual wording of the request included all of the documents, the question whether they must be produced remains.

III. Disposition by Summary Judgment

In response to the Commission’s motion for summary judgment, the District Court ordered the Commission to produce witnesses who could testify concerning the Commission’s procedures and whether documents existed within the categories requested by the NCTA. It then required the NCTA to examine those witnesses, identify the documents it sought, and show that they were not exempt.

We think this procedure was based on an erroneous construction of the Act’s requirements. The Commission could not rest on the blanket allegations of compliance, unidentifiability, and exemption that it made in its motion for summary judgment and supporting affidavit. Nor did the testimony elicited by the NCTA supply the missing evidence. Rather, it further undercut the Commission’s position.

The motion for summary judgment should have been denied, and the Commission should have been required to go on and prove the missing elements of its defenses as set forth below. On remand this can be done either in support' of a renewed motion or at a trial.

A. Identifiable Records

Apparently ignorant of the Commission’s internal operations and filing system, the NCTA identified the requested documents in terms of the functions they had served in the Commission’s development of the proposed fee schedule. Thus, before the Commission could comply with the request, it would have to identify the documents more specifically, as, for example, by name and file number. To do this the Commission would have to retrace the steps taken in the development of the rulemaking notice. The Commission has steadfastly refused to undertake this task, and the ruling of the District Court upheld this refusal.

The Freedom of Information Act does not require that a person identify records by providing the agency with a complete description down to the last detail of title and file number. It states:

[E]ach agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person.

This language places part of the responsibility for identifying the records on the agency itself. The responsibility of the person requesting the records is that he provide sufficient information to permit the agency to accomplish this duty. Problems of construction arise when we attempt to determine how much effort the requesting party must make, and how much he may leave to the agency, realizing always that he may be required to reimburse the agency for its efforts.

The legislative history provides us little added guidance, suggesting only that we look to our decisions construing the discovery rules applicable in civil cases and advising that, while requests must be “reasonably identifiable,” the requirement should not be used as a device to withhold records.

Our earlier cases have taken a pragmatic approach to this problem, attempting to draw lines that comport with the overall purposes of the Act. Wfe think our opinion in Bristol-Myers v. F. T. C. is controlling in this case. Additionally, it provides guidance in any attempt to articulate more generally the balance to be struck in cases involving attempts to inspect agency documents used to formulate proposed or final rules.

In Bristol-Myers the District Court refused to enter an order compelling the Federal Trade Commission to produce documents described and identified by the Company in terms of the function that they served in the development of proposed rules regulating the advertisement of certain drugs. The basis for that ruling was a narrow interpretation of the identifiability requirement in the Act:

An identifiable record necessarily means a record that is described with sufficient precision in order that by ministerial action of some subordinate the document can be identified and selected out of the files. It does not mean that the head of an agency or his immediate assistant must use judgment in seeking through the file to determine whether a particular document is within the classification asked for. That would be an unreasonable request.

We reversed, and pointed out:

The F.T.C. can hardly claim that it was unable to ascertain which documents were sought by Bristol-Myers. The Commission relied on certain materials in promulgating its proposed rule, and referred to them in announcing the rulemaking proceeding. These materials are adequately identified in

The Federal Communications. Commission now argues, as it did in its motion for summary judgment, that this language is inapplicable in the case before us for the reason that it did not “rely on” or “refer to” any documents in its February and March notices, but to its “knowledge” acquired from documents.

We think that the Commission misreads both our opinion in Bristol-Myers and the underlying purpose of our holding there. We did not impose a requirement that the notice directly refer to or rely on the documents to be disclosed. In fact, the request in Bristol-Myers did not differ from the request involved here:

The petition filed by Bristol-Myers with the F.T.C. sought the identification and disclosure of “each item of material, whatever its form or nature, which . . . has contributed to or constitutes” the “extensive staff investigation,” “accumulated experience,” “available studies and reports” and “other things” referred to in the [Federal Trade] Commission’s Notice [of proposed rulemaking.]

The scope of the agency’s responsibility to identify its own documents may be further delineated by examining a second request by Bristol-Myers, one which we said might present a plausible claim of unidentifiability by the Federal Trade Commission:

The petition also sought each item which has contributed to or constitutes information concerning the effect of any analgesic and information concerning the accuracy of appellant’s assertions concerning the effects of various ingredients of its own analgesic products.

This request undoubtedly extended beyond the documents that the F.T.C. itself possessed. Moreover, it was not apparent that the Commission had at any time either indexed its files in a way that would enable it to locate what it did have, or that it had ever brought the materials together for a common purpose or otherwise acted on them as a group. Thus, the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency.

Once the request has been made as specific as the agency’s public statements permit, Bristol-Myers teaches: (1) If the agency has previously identified a class or category of documents in the normal course of its affairs, it must produce them in response to a request phrased in terms of the class or category. (2) If the agency has never segregated that class or category, production may be required where the agency may be able to identify that material with reasonable effort.

Even where an agency has previously identified a class of materials, the passage of time may work such changes in the agency’s personnel and records that production requires that identification begin anew. In such circumstances, production may be required only if the task imposed on the agency is not unreasonable.

Where rulemaking proceedings have taken place, the agency has, by definition, already identified its supporting documents. Indeed, it would be a most reasonable practice for the agency to retain the documents as a group or index them for future retrieval. It would be most difficult to rebut the presumption that the agency would be able to produce the documents at least until the validity of its rule has been finally adjudicated in the courts.

Finally, Bristol-Myers establishes that the specificity with which the agency has identified documents in its public statements is relevant only to the requirement that the request be as specific as reasonably possible. It is not relevant to the question whether the agency can be required to identify and allow inspection of the requested records under section 552(a) (3).

In the present case the Commission has refused either to state that it did not make use of a mass of financial documents or to identify them. In fact, the District Court openly invited the former response' from the Commission witnesses, but they repeatedly asserted that there was a documentary basis for the Commission’s action, although it had not been identified in the notices of rulemaking.

The NCTA phrased its request as specifically as the Commission’s public notices reasonably permitted. Accordingly, the Commission should have been required to identify, at least by relevant classes and subclasses, all the documents that it had used to support its proposed rule. Then it should have been required to establish which of those documents were exempt from disclosure under the applicable provisions of the Act.

Much of this has now been done, albeit by the NGTA through its examination of Commission staff members. But there remains a substantial factual issue as to whether the Commission relied on trade publications and confidential reports, rather than vague concepts of the profitability of its regulated industries, in preparing its fee schedule. On remand, the Commission should be required to specify, by relevant category and subcategory, which — if any — of these materials it used.

For the future we think that these matters should be settled through the discovery process as much as possible. The civil rules governing pretrial discovery provide ample tools for use in compelling the agency to identify and disclose the documents it has that fall within the class or category requested. In addition to facilitating the disposition of these cases by summary judgment, this approach will enable the requesting person to narrow his request if he discovers that he wants only a part of the supporting documents that the agency identifies in response to his discovery requests.

B. The Commission’s Exemption Claims

Because of the confusion involved in identifying the documents that existed within the scope of the NCTA’s request in this case, the District Court was entirely diverted from the necessary inquiry into the exemptions now claimed by the Commission. Indeed, the oral ruling of the District Court denied the NCTA’s entire request on the ground that the “yellow work sheets” and adding machine tapes used to prepare the “cost factor” from the budget were exempt. Yet, so far as we can determine, these were the only “documents” that the hearing showed not to exist.

On the record before us, we perceive two possible exemptions that might justify withholding part of the material that the Commission admits it possesses. Under the applicable case law, however, neither would justify nondisclosure on this record, and the Commission must be required to establish the exemptions on the remand.

1. Intra-agency Memoranda

The Commission asserted below that inspection of the memoranda used in the preparation of the budget “request” and the memoranda used to determine the “value to the recipient of the privileges granted” could not be ordered. It pointed to section 552(b) (5) of the Act, which exempts “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” The District Court made no further inquiry into the matter, and the Commission produced nothing except a flat assertion that the documents “contained” policy arguments and were “confidential.”

Both our own cases and the Supreme Court’s recent holding in Environmental Protection Agency v. Mink make it clear that this is insufficient. In Mink the Supreme Court said:

Congress sensibly discarded a wooden exemption that could have meant disclosure of manifestly private and confidential policy recommendations simply because the document containing them also happened to contain factual data. That decision should not be taken, however, to embrace an equally wooden exemption permitting the withholding of factual material otherwise available on discovery merely because it was placed in a memorandum with matters of law, policy or opinion.

This distinction is particularly important here, where the memoranda at issue relate to the development of a fee schedule said to have been derived from cost data and collections of financial reports. The Commission must show that any factual matter in the memoranda is so “intertwined with policymaking processes” that it would violate the purpose of the exemption to disclose it.

Mink went on to point out that the District Court may use a variety of tools in making this determination, including, but not limited to, in camera inspection of some or all of the documents. Additionally, we note that the District Court in the Southern District of New York has recently resolved such a Freedom of Information Act case by appointing a Master and delegating the task of in camera inspection to him.

2. Confidential Financial Statements

It is equally unclear whether the “confidential financial statements” that the Commission allegedly used in determining “value to the recipient of the privileges granted” fall within the scope of the Act’s exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” The exemption does not protect all data contained in such filings, but only that information which cannot be rendered sufficiently anonymous by deletion of the filing party’s name and other identifying information.

In those cases in which the party that filed the statement is so large or unique that disclosure of the data itself would destroy the confidentiality of that party, it is conceivable that total nondisclosure would be justified. But the Commission’s witnesses testified that there are many thousands of such statements filed over a long period of time, and it seems highly improbable that the Commission will be able to establish that they must all be withheld.

This, too, will be an appropriate subject for the District Court on the remand, armed with the flexible tools cited by Mink. In particular, the Court should take note of the Supreme Court’s suggestion that representative samples of the statements be examined, rather than the thousands that apparently exist. But, before this examination is undertaken, the Commission should be required to state which, if any, of these documents were used in the preparation of its rules. As we have pointed out, the scope of the NCTA’s request was coextensive with the scope of the Commission’s documentary basis for its rules.

Reversed and remanded.

      . The Freedom of Information Act, 5 U.S.C. § 552 (1970), requires that each agency publish or make available certain classes of information. Id. § 552(a) (1)
      (2). All other information covered by the Act must be available for inspection in accordance with § 552(a)(3), which states:
      [E] ach agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person.

      . To justify a stay of an agency proceeding pending the litigation of a Freedom of Information Act request, a probability of irreparable injury must be shown. See Bannercraft Clothing Co. v. Renegotiation Board, 151 U.S.App.D.C. 174, 466 F.2d 345 (1972); Sears, Roebuck & Co. v. NLRB, 153 U.S.App.D.C. 380, 473 F. 2d 91 (1972). The District Court found that the NCTA had presented “no probative evidence” of such a probability.
      The rules were subsequently adopted on July 1, 1970, 35 Fed.Reg. 10,988, and were upheld on review, Clay Broadcasting Corp. v. FCC, 464 F.2d 1313 (5th Cir. 1972). That, of course, does not affect the NCTA’s claim, for the Act requires that the materials be made available to “any person.”

      . Joint Appendix 233.

      . See Semaan v. Mumford, 118 U.S.App. D.C. 282, 335 F.2d 704 (1964).

      . Notice of Proposed Rule Making, No. 18,802, 35 Fed.Reg. 3815 (February 18, 1970).

      . Supplemental Notice, No. 18,802, 23 F.C.C.2d 183 (March 4, 1970).

      . The Commission relied on title V, Independent Offices Appropriations Act of 1952, 31 U.S.C. § 483a (1970), as its authority for applying this formula. That statute states the sense of Congress that any tiling of value granted by any federal agency should be self-sustaining, and authorizes agency heads to promulgate regulations to that end. The regulations are “to bo fair and equitable, taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts.” Id.

      . The notices did provide a sketch of the general approach that the Commission followed with respect to each industry and the mechanics of fee collection. Notice of Proposed Rule Making, No. 18,802, 35 Fed.Reg. 3815, ¶¶ 9-14 (February 18, 1970).

      . This factor could mean a variety of things. The Commission, in its February Notice, stated:
      We have therefore selected different bases for considering “value to the recipient,” both for different types of actions within each service and similar types of action among different services, which we believe are fair and equitable. We fully recognize that the factors we have used may not wholly or precisely reflect “value to the recipient.” But such precision or accuracy is not required since our proposed fee schedule need only reflect some consideration of “value to the recipient,” and our proposed fees, in total, fall far short of the total value of Commission licenses, grants and authorizations computed by any standard.
      Tlie Commission made no attempt to set out its interpretation of this term, or to specify what monetary adjustments resulted from its use.

      . The original letter requested “the annual and inventory reports of all user charges of the Commission submitted to the Bureau of the Budget on Standard Form No. 4 on or about September 30, 1969,” the documents “used to prepare the Standard Form No. 4, report,” the “Commission’s budgetary request for fiscal year 1970, beginning July 1, 1970, whieli was submitted to the current sessions of Congress,” including supportive documents,” and “the Commission’s budgetary requests for fiscal years 1970, . . ., and 1969.” The italicized language manifests the NGTA’s ignorance of internal Commission proceedings discussed below. See text following note 13 infra.

      Finally, the letter stated generally:
      NCTA also requests the right to inspect documents used by the Commission in determining the proposed fee schedules set forth in the Notice of Proposed Rule Making .... In particular, NCTA requests the right to inspect the documents and the listings or records used to determine the “ ‘value to the recipient’ of the privileges granted” and “the direct and indirect cost to the Government” of granting and administering those privileges as referred to in paragraph 5 of the Notice of Proposed Rule Making . . . .”
      Joint Appendix 49-51.

      . The Commission’s administrative processing of the NCTA’s request deserves some comment. Although the right to inspect documents is not dependent on need, the speed of the agency’s response may drastically affect the requesting party’s ability to participate in a pending agency proceeding. In the context of a 30-day comment period related to a rulemaking proceeding, the Act’s requirement that production be “prompt,” becomes critical.
      The Commission, however, took approximately 23 days to issue a total refusal. Moreover, it relied in part on a claim that some of the documents were the property of the Bureau of the Budget, yet it violated its own regulations mandating that in such a case the request be forwarded to the appropriate agency. See 47 C.F.R. § 0.451(b) (3) (1972).
      We find all of this particularly troublesome in view of the fact that the Commission pi-oduced the documents requested in a majority of the NCTA’s categories before moving for summary judgment.

      . Notice of Proposed Rule Making, No. 18,802, 35 Fed.Reg. 3815, ¶ 3 (February IS, 1970).

      . See Letter of March 2, 1970, from Gary L. Christensen to Max D. Paglin, Executive Director, F.C.C., at Joint Appendix 49.

      . One Commission witness testified that the direct costs of CATV regulation were $678,000, and that CATV had been assessed no indirect costs. The March Notice, however, stated that the costs directly and indirectly attributable to CATV regulation amounted to $1,145,400. The witness explained that the latter-figure also included CATV’s share of unassigned costs.
      This explanation seems inadequate because the March Notice included separate amounts for the operation of offices not directly responsible for regulating any particular industry. This seems to indicate that the $1,145,400 excluded unassigned costs.

      . Joint Appendix 217 (emphasis added).

      . 5 U.S.C. § 552(a)(3) (1970).

      . The Commission relies heavily on a phrase in the Senate Report that states that the records “must be identifiable by the person requesting them." S.Rep. No. 813, 89th Cong., 1st Sess. 8 (1965). (emphasis added).
      The context in which the phrase appears destroys any support these words appear to provide for the Commission’s argument that it has no independent responsibility to identify the documents. Tiie full statement is: “The records must be identifiable by the person requesting them, í. e., a reasonable description enabling the Government employee to locate the requested records. This requirement of identification is not to be used as a method of withholding records.” Id. (emphasis added).

      . See 5 U.S.C. § 552(a) (3) (1970). The NCTA stated that it was prepared to pay such costs in its initial letter of March 2, 1970. See Joint Appendix 51.

      . See S.Rep. No. 813, 89th Cong., Sess. 8 (1965).
      The legislative history indicates that the standards to be applied should correspond generally to the discovery rules applicable to civil suits in the District Courts. See id. The 1970 amendments to Rule 33, Fed.R.Civil Proc., are instructive in this regard. They establish an alternate procedure for answering interrogatories that require the responding party to examine its own records. The responding party now may make the records available for inspection instead of searching out the information himself.
      But this rule does not exempt the responding party from all responsibility for identifying documents in his own files. Only if the requesting party can perform that task with equal facility can he be required to cull the responding party’s files. In all other cases, even when identification requires the creation of new classes, the responding party must do it. See Budget Rent-A-Car of Missouri, Inc. v. Hertz Corp., 55 F.R.D. 354 (1972) ; 4A Moore, Federal Practice & Procedure, Advisory Committee Note, Amended Rule 33, ¶ 33.01 [6], at 33-13 (1971).

      . See, e. g., Soucie v. David, 145 U.S. App.D.C. 144, 448 F.2d 1067 (1971). Aside from its general purpose of maximizing disclosure, however, the statute adds little help in determining the meaning of “identifiable.”

      . 138 U.S.App.D.C. 22, 424 F.2d 935 (1970).

      . 284 F.Supp. 745, 747 (D.D.C. 1968). the request for disclosure of the items mentioned in the Commission’s Notice.

      . 138 U.S.App.D.C. 22, 424 F.2d 935, 938 (1970).

      . See Joint Appendix 200-222.

      . Id. at 938 n. 7. The Notice of Proposed Rulemaking, 32 Fed.Reg. 9843 (July 6, 1967), stated:
      In taking this action the [Federal Trade] Commission has considered, among other things, . . . ; and on the basis of its accumulated experience and available studies and reports, is of the opinion that the public interest in a Trade Regulation Rulemaking proceeding is specific and substantial [sic].

      . 138 U.S.App.D.C. 22, 424 F.2d 935, 938 n. 8 (1970).

      . Rules reviewable under the Administrative Procedure Act see 5 U.S.C. § 704 (1970), are to be “held unlawful and set aside” if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance witli law,” among other things. Id. § 706.
      This limited scope of review does not exclude review of the underlying facts and assumptions upon which the agency acted. The agency has a responsibility to maintain its ability to produce this information at least until final adjudication of the rule.

      . The question whether documents must be made available under 5 U.S.C. § 552 (a)(2), or the due process clause, is not in issue here. See Sterling Drug Inc. v. Federal Trade Comm’n, 146 U.S.App.D.C. 237, 450 F.2d 698 (1971).

      . See Joint Appendix 200-01.

      . See, e. g., Rules 33, 34, Fed.R.Civil Proe.

      . See Note, 15 Tenn.L.Rev. 737 (1972) (Preliminary discovery by oral examination or written interrogatories is available when desired in order to ascertain the existence, description, nature, custody, condition and location of documents or tangible things.”)
      This approach was taken in Grumman Aircraft Engineering Corp. v. Renegotiation Board, C.A., 325 F.Supp. 1146 (D.D. C. 1971), on remand from this court’s decision, 138 U.S.App.D.C. 147, 425 F.2d 578 (1970).

      . 5 U.S.C. § 552(b)(5) (1970).

      . See text at note 15 supra.

      . See, e. g., Ackerly v. Ley, 137 U.S.App. D.C. 133, 420 F.2d 1336 (1969).

      . 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).

      . Id. at 91, 93 S.Ct. at 838.

      . Id. See Mink v. Environmental Protection Agency, 150 U.S.App.D.C. 233, 464 F.2d 742, 746 (1972).

      . 410 U.S. at 93, 93 S.Ct. at 839.

      . Frankel v. Securities & Exchange Comm’n, 336 F.Supp. 675 (S.D.N.Y. 1971), reversed on other grounds, 460 F. 2d 813 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972).

      . 5 U.S.C. § 552(b) (4) (1970).

      . See, e. g. Fisher v. Renegotiation Board, 153 U.S.App.D.C. 398, 473 F.2d 109 (1972); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 138 U.S. App.D.C. 147, 425 F.2d 578 (1970).

      . 410 U.S. at 93, 93 S.Ct. at 839.


source: Caselaw Access Project

author: DANAHER, Senior Circuit Judge:

license: Public Domain

text:
    Robert C. FIELDING, Appellant, v. John Henry BREBBIA and George D. Webster.
    No. 71-1899.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 17, 1972.
    Decided April 17, 1973.
    Rehearing Denied June 11, 1973.

      David Brady, New York City, of the bar of the Supreme Court of the United States, pro hac vice, by special leave of court, for appellant. William W. Scott, Washington, D. C., was on the brief for appellant. E. David Doane, Washington, D. C., also entered an appearance for appellant.
    Jacob A. Stein, Washington, D. C., with whom Carl W. Berueffy, Washington, D. C., and Arthur V. Butler, Whea-ton, Md., were on the brief, for appel-lees.
    Before WILBUR K. MILLER and DANAHER, Senior Circuit Judges, and WRIGHT, Circuit Judge.
   DANAHER, Senior Circuit Judge:

In a non-jury trial before Judge Ge-sell, appellant’s counsel submitted as issues framed at pre-trial:

“One, is there an attorney-client relationship between these defendants and Mr. Fielding; and, if so, did they come to sue him in subject matter which is substantially related to the prior representation.”

Judge Gesell concluded after trial that Fielding “on the case as a whole failed to sustain a cause of action on the merits and that, of course, is the end of the litigation.” Alternatively, he found that a question as to the effect to be given to the New York “release” had been properly raised at pre-trial, and then held that New York law required the conclusion that “the document released not only the individual named [Heymann] but the other two Defendants [Brebbia and Webster].”

This appellant now on brief “challenges the conclusions of the trial court, not its findings of fact,” and explains that, accordingly, “no attempt was made to challenge the trial court’s findings as being ‘clearly erroneous.’ ” Appellant thus argues that the factual findings do not support, first, “the conclusion that an attorney-client relationship was not established between Brebbia and Fielding,” and, next, the conclusion that “the actions of Webster (and Brebbia) could not be construed as a breach of fiduciary duty to Fielding which would justify a judgment for damages.”

I

As we thus define our present involvement, it is trite to say it is only the summit of the iceberg. Even so, for background purposes, it is possible to discern enough to glean a reasonable measure of understanding as to what circumstances gave rise to the dispute now in litigation.

Among the partners in the Davies law firm were Alfons Landa and Delmar Holloman when in 1958-1959 Holloman was asked by Fielding to meet with one Albert G. Neumeyer of Las Vegas. The latter sought business advice and financial assistance with particular reference to a Nevada corporation known as First Western Savings and Loan (herein Savings & Loan). Landa and Fielding were already eoventurers in certain enterprises. They were not averse to consideration of the possibilities presented by the Neumeyer project.

Holloman was later to testify in this case that Landa and Fielding had in mind a participation amounting to a million and a half dollars, ostensibly as a loan, but “at the same time,” certain options and contingencies were involved. If all materialized as planned, he said, “they” would wind up owning some 60 per cent or more of a Delaware corporation to be formed, First Western Financial Corporation (herein “Financial”), of which Savings & Loan would become a wholly owned subsidiary.

The Davies firm as of April, 1961, became counsel in working out a public underwriting of stock for Financial, and so continued as counsel over the next several years. George D. Webster became a partner in the Davies firm in 1960.

From 1960 to 1966, Fielding was president and director of Financial. Webster became assistant secretary. By 1965, pursuant to a Nevada statute, the state organized Savings & Loan was required to qualify for federal insurance backed by the Federal Savings and Loan Insurance Corporation.

Meanwhile, as of January, 1965, Breb-bia became an associate in the Davies firm, and with Financial’s interests at stake, Brebbia, Fielding and Webster attended meetings with representatives of the Federal Home Loan Bank Board. It had developed that Savings & Loan was in trouble and an “assistance agreement” was to be negotiated. An official audit, commenced in 1966, disclosed a shrinkage of assets of some $20,000,000.

As noted in our earlier opinion, Fielding alleged he had been advised in 1966 to sever relationship with Financial. Webster, with the Federal Savings and Loan Insurance Corporation having authority to approve, and with the affirmative support of Fielding, became a director of Financial, and Brebbia in December, 1966 became a director, vice-president and general counsel of Financial. He also became a director of Savings & Loan.

Brebbia thereupon began an investigation of the conduct of the affairs and of the management of Savings & Loan. The successor Board of Directors of Savings & Loan voted that a lawsuit be filed against Fielding and others; indeed, Judge Gesell found:

“ . . . it is certainly clear that the suit which was generated by, in effect, the demand of the Federal Savings and Loan Insurance Corporation, in its letter of March 10, 1967, was not based on any information that Mr. Webster and Mr. Brebbia, or either of them, obtained in a confidential way through any contact with Mr. Fielding other than as counsel for First Western in the normal course of that representation which Mr. Fielding had approved.”

In May, 1967 the suit brought in the Nevada state court charged waste and mismanagement of Savings & Loan on the part of the former management, naming among the defendants, Neumeyer and Fielding. Over-valuation of properties on which loans had been made ran into the millions, it was alleged. That state court suit was finally dismissed as to Neumeyer and Fielding, but their motion that the dismissal be “with prejudice” was denied. The Savings & Loan claim was assigned to the governmental agency, Federal Savings and Loan Insurance Corporation, which thereupon commenced action in the United States District Court in Nevada against Fielding and others. The District Court rejected the defense argument that the claim against the former management could not validly be assigned.

When Neumeyer died, his executrix, his widow, over objection was substituted as a party.

In the latest (May 10, 1972) of the series of opinions in the United States District Court in Nevada, Judge Thompson with infinite pains has drawn together threads and skeins of circumstances developed over the years. The final fabric delineates a picture as clear as earlier isolated aspects of the relationship might have seemed devious.

Judge Thompson concluded that executives of the involved corporate entities and former partners in and the associate of the law firm which had been counsel to the corporations were not disqualified from participation officially in an action against the former management. The officers and directors of a company, he concluded, were bound to exercise a duty reflecting utmost confidence and trust to the corporation and its stockholders. The corporation is the client, he pointed out. He saw what, in essence, is our situation here, concluding that business confidences of business partners lack the protection of professional privilege. See generally, Federal Savings and Loan Insurance Corp. v. Fielding, 343 F.Supp. 537 (D.Nev.1972), and particularly, 546.

We think Judge Gesell here in July, 1971, had sensed precisely what had been happening and what underlay the controversy before him, much as did Judge Thompson in May, 1972.

While the various corporate matters had been running their course, Fielding had personally received certain services from members or associates of the Davies firm. They drew wills for Fielding and his wife, set up various corporations not connected with Financial, gave advice to Fielding as to taxes and that sort of thing. No charge was made for such services, indeed even when Holloman prepared the papers attendant upon acquisition of Financial, Fielding was not billed.

Appellant’s counsel has pointed to Canons 6 and 37 of the ABA Canons of Professional Ethics and has contended that the mere fact that Webster and Brebbia had given legal advice to or performed some services for Fielding in such unrelated respects established a breach of fiduciary duty to him.

The transcript shows that the trial judge repeatedly sought to ascertain what professional secrets had been revealed by Webster and Brebbia. “I’m not interested in legal services in general — but whether there were any involving confidential disclosure.” Again, to paraphrase, what confidential disclosures did Mr. Fielding make to the Davies firm which have any bearing on the subsequent litigation? “That is what I want to know,” said the judge.

Appellant’s counsel replied: “We don’t have any secrets which we are going to identify in this trial that we told to this law firm and which were later used against Mr. Fielding.”

In culmination of all that had gone before, by March 10, 1967, the Director of the Federal Savings and Loan Insurance Corporation addressed a letter to the Board of Directors of Savings & Loan. He made it clear that

“as directors you have the duty and opportunity of making appropriate investigations and judgments as to whether the facts and circumstances justify the assertion of claims against bonding companies, former officers, directors . . . and the institution of appropriate legal actions to compensate the association for the damages it has suffered.”

There was more, but we have said enough to demonstrate why Judge Gesell could surmise that the letter “generated” action. Webster and Brebbia about March, 1967, terminated their connection with the Davies firm after an agreement had been reached as to finances and the firm turned over to them the files dealing with the business of Financial. Some of Fielding’s papers dealing with his personal business were deemed by the judge to have been “inadvertently” included, but no injury to Fielding was shown to have occurred on that account. Besides, the judge observed, there was no indication that Fielding’s personal papers had any real bearing on the litigation. Moreover, a trial judge in Nevada could determine their pertinency, if any, and exclude them if necessary. Meanwhile, all files had been impounded, Fielding could have access to them, and “full and complete remedies were available in the Nevada litigation.” We see no error in Judge Gesell’s appraisal of the problem.

The state court action came to naught. Webster’s involvement had ceased. While he and Fielding were dealing with the affairs of Financial, both were serving its corporate business. Both were paid by Financial. Webster was where he was with Fielding’s support. There simply was no privilege involved. Indeed, the judge commented:

“ . . . There is no manner in which an attorney can represent a corporation without dealing with the individuals, particularly the officers and directors who are responsible for its policies and responsible for the conduct of its affairs.”

We think that conclusion inevitable on the record before us.

II

The Transcript shows that the District Judge in colloquy with Fielding’s counsel remarked:

I indicated at the beginning of this trial that I was prepared to take testimony bearing on [the issue of release and discharge]. I am asking you now, do you want me to decide it on the formal papers ?
[Counsel]: May I confer with my client for a moment?

A recess was then taken after which the judge was informed that the appellant would “rest on the documents.”

The foregoing discussion related to Fielding’s New York suit against Webster, Brebbia and Henry M. Hey-mann, all of whom as attorneys were alleged to have represented Financial and Savings & Loan and to have become three of the four directors of both corporations. All were charged as in this action.

The trial judge in his oral opinion stated:

A study of the complaint which the Court has carefully made satisfies the Court that the complaint is framed in a manner that alleges that the three attorneys were joint tort feasors and, therefore, with these clear allegations and the explicit nature of the New York statute, an alternative ground for granting judgment at this time to each defendant will be based on the fact that there was a . decisive release of the issues raised in this complaint.

In the New York courts Fielding and Heymann had jockeyed for priority in proceeding with pre-trial examination of each other until Mr. Justice Nunez took charge. He ordered Heymann’s examination of Fielding to proceed on a fixed date. Our record shows that Fielding and Heymann thereafter entered into an agreement mutually terminating their respective claims, reciting that they “are desirous of ending all disputes between them without further litigation.”

They described that document as a “covenant not to sue” and as “not intended and shall not be construed as a release.” But their recitation went one step further: “This agreement shall be construed in accordance with the laws of the State of New York and may not be changed orally.” (Italics ours.)

There was no reservation of claims against others.

Fielding is an attorney admitted to practice in New York. He had shared offices with Heymann. He was a principal in many ventures including his holdings in Colt Industries which controls various subsidiaries, for example, Colts Patent Firearms Company. It is clear enough that the trial judge could readily perceive he was no novice.

It is the “settled law” of New York “that the release of one of several joint tort-feasors, without reserving any claim against the others, releases all,” wrote the court in Rushford v. United States, 204 F.2d 831, 832 (2d Cir. 1953), citing Milks v. McIver, 264 N.Y. 267, 190 N.E. 487 (1934).

The New York ruling explaining the effect of its distinction between a release and a covenant not to sue may further be discerned in Gilbert v. Finch, 173 N.Y. 455, 66 N.E. 133 (1903). There, at 466, 66 N.E. at 135, the court pointed out that an agreement which expressly reserves the right to sue others is a covenant not to sue and those others will not be discharged; but such an instrument releasing one, without a reservation of rights against others, operates to discharge all joint tort feasors.

That the basic New York rule is more rigid than our own is obvious, but we cannot ignore the fact that these New York attorneys, in New York, agreed that the law of New York was to govern their agreement. There was no reservation by Fielding of a claim against Webster and Brebbia, and Judge Gesell correctly decided that “as a matter of New York law the document released not only the individual named [Heymann] but the other two Defendants.”

Appellant would have us say that the judge erred in light of Plath v. Justus, 28 N.Y.2d 16, 319 N.Y.S.2d 433, 268 N. E.2d 117 (1971). There the court, at 28 N.Y.2d at 22, 319 N.Y.S.2d at 437, 268 N.E.2d at 120, restated its general rule:

Where a release has been given but the releasor reserves the right to proceed against other wrongdoers, we believe effect should be given to the intention of the parties as expressed by these reservations and allow the suit against any defendant not a party to the release. (Emphasis supplied).

The court then went on to give effect to the intention of the parties, for the reservation of rights over was clearly to be discerned, and the instrument was not to be treated as a release. The opinion offers no aid to the appellant in the situation before us. Moreover, the appellant spurned the opportunity to try to bring himself within the rule as stated in Plath.

Without further discussion which would unduly extend our treatment perhaps already too diffuse, we have carefully considered appellant’s every claim and find ourselves constrained to order that the judgment of the District Court be

Affirmed.

      . The original complaint against Brebbia and Webster filed in the District of Columbia as of July 25, 1967 had been dismissed by order entered November 2, 1967. An essentially similar complaint, signed by Fielding and verified August 23, 1967, was filed by Fielding against Brebbia, Webster and one Henry H. Heymann, a New York attorney, in the Supreme Court for the County of New York. In due course Fielding and Heymann entered into an instrument variously herein designated as a release or covenant not to sue.

      . Fielding v. Brebbia, 130 U.S.App.D.C. 270, 399 F.2d 1003 (1968).

      . For a discussion of the duties of a director of a corporation, see Pepper v. Litton, 308 U.S. 295, 311-312, 60 S.Ct. 238, 84 L.Ed. 281 (1939).

      . Federal Savings and Loan Insurance Corp. v. Fielding, 309 F.Supp. 1146 (D. Nev.1969).

      . Federal Savings and Loan Insurance Corp. v. Fielding, 316 F.Supp. 82 (D.Nev. 1970).

      . See note 1, supra, and related text.

      . We can readily concur in the trial court’s assessment of the effect to be accorded to the respective complaints.

      . As noted, supra, Judge Gesell gave Fielding an opportunity to testify respecting his position as to the agreement, but he declined to do so.

      . Judges L. Hand, A. Hand and Jerome Frank, reviewing Rushford v. United States, 92 F.Supp. 874 (N.D.N.Y.1950).

      . And see Sagan v. State, 205 Misc. 435, 128 N.Y.S.2d 924, 926 (Ct.Clms. 1954). Cf. Western Newspaper Union v. Woodward, 133 F.Supp. 17, 25 (W.D. Mo.1955), where Judge Whittaker (later Mr. Justice) has commented upon New York law.

      . Mere nomenclature does not control; the facts and the intentions of the parties will. McKenna v. Austin, 77 U.S.App. D.C. 228, 134 F.2d 659 (1943).

      . Other cases cited by the appellant have been considered but are clearly distinguishable. Compare, e. g., Doe v. A Corp., 330 F.Supp. 1352 (S.D.N.Y.1971), aff’d sub nom. Hall v. A. Corporation, 453 F.2d 1375 (2d Cir. 1972), where the facts are not even remotely comparable to the situation here. See also Richardson v. Hamilton International Corporation, 469 F.2d 1382 (3 Cir. 1972), cert. denied, 41 L.W. 3608 (May 15, 1973).


text:
    Henry S. BLOOMGARDEN, Appellant, v. Charles B. COYER et al.
    No. 71-1765.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 19, 1972.
    Decided May 9, 1973.

      Edward Greensfelder, Jr., Washington, D. C., for appellant.
    Max 0. Truitt, Jr., Washington, D. C., for appellee, Georgetown-Inland Corp., et al.; Michael Valder, Washington, D. C., and Christopher Sanger, Gaithersburg, Md., entered appearances for appellees, Coyer and Guy.
    Before SOBELOFF, Senior Circuit Judge for the Fourth Circuit, and WRIGHT and ROBINSON, Circuit Judges.

       Sitting by designation pursuant to 28 U.S. C. § 294(d).

   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal follows appellant Bloom-garden’s unsuccessful effort in the District Court to recover a $1 million finder’s fee. The fee was sought for services leading to the inauguration of an enterprise to extensively develop certain property on the Georgetown waterfront in Washington. The principals in the enterprise are appellees Coyer and Guy, individual real estate developers, and ap-pellee Georgetown-Inland Corporation (Georgetown-Inland), one of five companies organized, with Coyer and Guy as two of the stockholders in each, to effectuate the project. At the center of the controversy is Bloomgarden’s assertion that it was he who brought the organizers together in this mutually beneficial venture and who, by the same token, should be rewarded for that contribution.

It is fully conceded that Bloomgarden introduced Coyer and Guy to those with whom they were later to join forces. There was, however, no express agreement, written or oral, pertaining to the part Bloomgarden played or calling for compensation therefor from any of the appellees. Bloomgarden’s quest for a finder’s fee proceeded on the theory that he was entitled to remuneration by virtue of a contract which should either be factually implied from prevalent custom and usage or recognized as a legal consequence of the transaction when viewed in light of the surrounding circumstances.

After the close of the pleadings and some amount of discovery, Bloomgarden moved for partial summary judgment on the issue of liability and appellees for summary judgment on the entire case. The District Court denied Bloomgar-den’s motion and granted appellees’, in each instance on two separate grounds. The court held that because Bloomgar-den did not hold the license required of real estate and business-chance brokers in the District of Columbia he was precluded from charging for what he did. The court further held that Bloomgar-den had no enforceable claim for recompense because it appeared without dispute that at the time he introduced the parties he did not expect to be personally compensated for so doing. Without reaching the first ground relied on by the District Court, we affirm for reasons underlying the second.

I

Bloomgarden’s suit traces its origin to a series of events commencing in the fall of 1969 and extending into the spring of 1970. Throughout this period he was serving as president of Socio-Dynamics Industries, Inc. (SDI), a consulting and research firm in the field of urban and environmental affairs. Nearly half of SDI’s capital stock was owned by David Carley, president of Public Facilities Associates, Inc. (PFA), which was engaged in the development of public and private housing and the redevelopment of urban areas. Carley had requested Bloomgarden to remain alert to any potentially fruitful investment opportunities for PFA in the Washington area.

At the time, Coyer and Guy held contracts or options on several parcels of real estate on the Georgetown waterfront. Bloomgarden met Coyer in the summer of 1969 while arranging to lease office space in a building in which Coyer had an interest. At one of their meetings, Coyer revealed to Bloomgar-den the details of a plan for the assembly and development of a sizeable segment of the waterfront into a multipurpose business complex. Coyer explained that he and Guy lacked the financial resources needed to carry the project through, and Bloomgarden offered to put him in touch with Carley.

Bloomgarden promptly apprised Car-ley of Coyer’s project and set up a meeting between them and others for January 26, 1970. Ideas were then exchanged but no suggestion was made by Bloomgarden to Carley or Coyer that he expected to be paid for bringing them together. By Bloomgarden’s arrangement the group attended another meeting, on February 19 in Chicago, with representatives of subsidiaries of Inland Steel Company (Inland Steel). Again the plan was discussed and again Bloom-garden gave no indication that he anticipated a fee for introducing Coyer and Guy to Carley and his Inland associates. On the contrary, during a ride to the airport on the day after the Chicago meeting, Guy inquired of Bloomgarden as to what he hoped to get out of the project, and Bloomgarden responded merely that possibly SDI, his company, might garner some work in implementing the plan. Aside from furnishing three of the principals — Coyer, Guy and Carley — with information about the others, Bloomgarden had no further role in the transaction.

An agreement in principle was reached between Coyer, Guy and the Inland Steel group in early April, 1970. This was formalized by a contract in June and a shareholders’ agreement executed in August. Five corporations, among them Georgetown-Inland, were organized to handle the project. It was not until the end of March, 1970, however, that Bloomgarden asserted any monetary claim on behalf of SDI for bringing about the initial contact, and it was not until May that he asked for compensation for himself. After each of these demands was rejected, Bloomgarden, on September 14, wrote to Coyer, again claiming-a fee for sparking the business opportunity culminating in the Georgetown project. That likewise failing, Bloomgarden commenced his suit on October 1.

II

The District Court’s judgment rested, as we have said, on two bases. The court ruled that since Bloomgarden was not licensed as a real estate or business-chance broker by the District of Columbia, he could not recover pay for his contribution, to the Georgetown venture. The court also held that, as a matter of law, Bloomgarden was not entitled to relief because at the time he assisted appellees he had no expectation of personal reward for his efforts. Since our analysis leads us to a conclusion similar to the District Court’s second reason, it is unnecessary here to consider the applicability of the licensing statute to Bloomgarden’s activities.

Bloomgarden, we reiterate, sought a finder’s fee on a twofold basis. He said that an agreement to pay such a fee, though not express, might be implied from the circumstances in which he brought the parties together, particularly in view of an alleged custom to reward those who discover advantageous business opportunities for others. Bloomgarden also said that in the context in which he introduced the parties, they came under a legal obligation — a quasi-contract — to compensate him for his services whether or not the elements of an enforceable contract were present. On this appeal Bloomgarden adds the contention that the District Court’s disposition of his action by summary judgment was improper because there were important issues of fact, and because ap-pellees had not demonstrated the validity of the legal position which the court accepted.

In reviewing the propriety of a summary judgment, it is our responsibility to determine whether there was any issue of fact pertinent to the ruling and, if not, whether the substantive law was correctly applied. The summary judgment procedure is properly and wholesomely invoked when it eliminates a useless trial but, of course, not when it would cut a litigant off from his right to have a jury resolve a factual issue bearing significantly on the outcome of the litigation. The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue as to any material fact, and even where his opponent comes forth with nothing, summary judgment must be denied if the facts supporting the motion do not establish the nonexistence of such an issue. Likewise, summary judgment must be denied where the movant fails to show his entitlement to a favorable determination as a matter of law. Thus, to be upheld, the summary judgment under review must withstand scrutiny on both its factual and legal foundations.

In the case at bar, the District Court, relying on Bloomgarden’s own deposition, as was its prerogative in evaluating the summary-judgment motions made by the parties, concluded that Bloomgarden did not contemplate personal remuneration for his services, and that in consequence he lacked an indispensable prerequisite to recovery on either an implied-in-fact contract or a quasi-contract. Like the District Court, we are unable to perceive any factual basis upon which it could be asserted that, at the time he introduced the parties, Bloomgarden looked forward to any finder’s fee for himself, as distinguished from a fee and future business for his company. His silence on the matter at the January meeting in Washington and again at the February meeting in Chicago, followed by his statements on the day after the Chicago meeting and later in his deposition, indicated unequivocally that at most the gain he then anticipated was work and compensation for SDI, of which he-was president. Bloomgarden summed it up when in his deposition he said:

It was always my intention that [SDI] should benefit, not myself personally, from putting Inland and Coyer together. [SDI] should have the credit; that [SDI] should get work assignments and that a finder’s fee should be paid to [SDI], It wasn’t until I was told that I could not bring suit in the name of [SDI] and was urged to see if I wanted to sue Coyer as an individual that I began to recognize that I was in a very, very difficult spot.

In addition, the pleadings and depositions reveal that it was not until after Bloomgarden had done his service for the parties that they were put on notice that he had in mind a finder’s fee, either for his company or for himself. Both Coyer and Guy avowed in their depositions that they thought Bloomgarden was acting either for SDI or Carley when in January he made the introductions. Their understanding in that regard was buttressed in February by Bloomgarden during the ride to the Chicago airport when, asked pointedly as to his expectations, he omitted reference to individual recompense and replied simply that he had in view the possibility that his company would receive work assignments flowing from the Georgetown project if it materialized. Moreover, Bloomgarden admitted in his deposition that not until the end of March — long after completion of the services for which remuneration was demanded — did he suggest compensation for SDI, his company, and not until May did he indicate that he anticipated personal compensation.

Against these damaging incidents and admissions — the underpinnings of appellees’ motion for summary judgment — Bloomgarden advanced nothing more than the bare conclusory allegations of his complaint. We are mindful that on a motion for summary judgment the inferences to be drawn from the factual material before the court must be viewed in the light most favorable to the party opposing the motion. But we also recognize that in order to raise a material issue of fact precluding the grant of a properly supported motion for summary judgment, more is necessary that mere assertions in the pleadings. Our careful examination of the record leads us to concur with the District Court that appellees bore their burden as to the nonexistence of any genuine factual issue, and that Bloom-garden offered nothing substantial to bar their request for summary judgment. It remains for us to determine whether the principles of substantive law governing recovery on contracts implied in fact and quasi-contracts were correctly applied.

III

Despite the marked dissimilarity of contracts implied in fact to quasi-contracts, their separate characteristics have been blurred by courts and commentators over the years. For any satisfactory understanding of Bloomgarden’s twofold legal approach, it is important to keep the two concepts clear and distinct. An implied-in-fact contract is a true contract, containing all necessary elements of a binding agreement; it differs from other contracts only in that it has not been committed to writing or stated orally in express terms, but rather is inferred from the conduct of the parties in the milieu in which they dealt. A quasi-contract, on the other hand, is not a contract at all, but a duty thrust' under certain conditions upon one party to requite another in order to avoid the former’s unjust enrichment. The principles governing the two remedies differ, though in particular cases they may dictate the same result.

It is well settled that, in order to establish an implied-in-fact contract to pay for services, the party seeking payment must show (1) that the services were carried out under such circumstances as to give the recipient reason to understand (a) that they were performed for him and not for some other person, and (b) that they were not rendered gratuitously, but with the expectation of compensation from the recipient; and (2) that the services were beneficial to the recipient.

Particularly where commission-type fees are sought in business-opportunity transactions, such a contract will not be implied unless the recipient knows or has reasonable grounds to believe that the beneficial acts were performed in anticipation of remuneration therefor. The reasons underlying these requirements are evident. Activities beneficial to a party frequently proceed on behalf of another. Often they are engaged in without thought of remuneration. Not uncommonly, and irrespective of motivation, they are not really helpful to the recipient. An agreement to pay for services defies implication where the recipient not unreasonably fails to realize that the services were rendered for him in contemplation of quid pro quo for value conferred. And the point in time at which the elements essential to implication must concur is the time at which the services are rendered.

We may assume on the record before us that Bloomgarden’s introductions were valuable to appellees, or that at least there was a genuine issue as to whether they were. Yet, for Bloomgar-den to recover on the basis of a contract implied in fact, he would have to show additionally that he looked forward to personal payment for his services, and that the circumstances under which he introduced Coyer and Guy to Carley were such as would reasonably have put them on notice that he had that in mind. From aught that appears from the record, Bloomgarden could not have met these standards at a trial.

Bloomgarden’s claim of an implied-in-fact contract is not unlike that rejected by the Eighth Circuit in Maple Island Farm v. Bitterling. Bitterling was an American citizen who for a number of years had lived in Latin America, and who had utilized his knowledge of the language and the countries to represent foreign companies doing business there. In 1945, he called at the offices of Maple Island Farm, a Minnesota milk producer, with a view to negotiating an agreement with Maple Island whereby he and a Venezuelan corporation of which he was president would be named the exclusive agent for importing and marketing Maple Island’s products in Venezuela. Maple Island initially rejected Bitterling’s offer but accepted several of his suggestions regarding name and label changes on products for sale in Spanish-speaking countries, and the negotiations for the Venezuelan distributorship continued. In the meantime, Bitterling accompanied a Maple Island representative on a trip to Mexico in search of a distributor for milk in that country, and thereafter Bitterling asked Maple Island for a commission on all future sales made there. Maple Island refused him the commission and instead gave him a check to cover his expenses. Bitterling then sued for the commission on an implied-in-fact contract theory, and was successful in the District Court. On appeal, however, his recovery was reversed.

The Court of Appeals found on the basis of the record that Bitterling did not expect cash compensation for the advice he had rendered in connection with Maple Island’s Mexican sales, but that his volunteered services were wholly incidental to the continuing negotiations respecting his possible selection as the dairy farm’s agent in the much larger market of Venezuela, and that his assistance was offered in the hope of obtaining a gainful connection with Maple Island in that market. The court held that a contract to pay for services will not be implied where the actions are performed for business reasons without thought of direct cash compensation, and that no recovery can be had for preliminary services rendered simply with the idea of obtaining business through a hoped-for contract.

In no significant degree is the case before us distinguishable from Maple Island. The record establishes without controversy that Bloomgarden introduced appellees on the chance that a coalition to develop the Georgetown waterfront would eventually produce business for SDI, his company, and that appellees reasonably understood that his activities were directed solely to that end. The record further establishes that even if Bloomgarden then entertained the notion of charging a finder’s fee, appellees were not alerted to that possibility until long after his activities had ended On these uncontradicted bases we find ample legal support for the District Court’s conclusion that Bloomgarden failed to show an implied-in-fact contract supporting his claim.

IV

We turn finally to examine the sufficiency of Bloomgarden’s quasi-contract theory as a basis for recovery of the finder’s fee which he sought. At the outset, we again call attention to the need for conceptual clarity. The quasi-contract, as we have said, is not really a contract, but a legal obligation closely akin to a duty to make restitution. There is, of course, no need to resort to it when the evidence sustains the existence of a true contract, either express or implied in fact. For the purpose of preventing unjust enrichment, however, a quasi-contract — an obligation to pay money to another — will be recognized in appropriate circumstances, even though no intention of the parties to bind themselves contractually can be discerned. And where, as here, the essential facts are not in dispute, the question whether a quasi-contract should be erected is one of law, and as such is a proper subject for summary disposition.

Generally, in order to recover on a quasi-contractual claim, the plaintiff must show that the defendant was unjustly enriched at the plaintiff’s expense, and that the circumstances were such that in good conscience the defendant should make restitution. Because quasi-contractual obligations rest upon equitable considerations, they do not arise when it would not be unfair for the recipient to keep the benefit without having to pay for it. Thus, to make out his case, it is not enough for the plaintiff to prove merely that he has conferred an advantage upon the defendant, but he must demonstrate that retention of the benefit without compensating the one who conferred it is unjustified. What must be resolved here is whether Bloomgarden made such a showing or evinced his capability of possibly doing so at trial.

By their very nature, the equitable principles of quasi-contracts are more difficult to apply where the court must determine whether services rendered by one person to another are to go unrewarded than where it must make that determination with respect to money or property unjustly retained. But since there is no general responsibility in quasi-contract law to pay for services irrespective of the circumstances in which they are carried out, a number of factual criteria have been utilized by courts to ascertain whether in a given case the defendant has undeservedly profited by the plaintiff’s efforts. Thus, in situations involving personal services, it has been variously stated that a duty to pay will not be recognized where it is clear that the benefit was conferred gratuitously or officiously, or that the question of payment was left to the unfettered discretion of the recipient. Nor is compensation mandated where the services were rendered simply in order to gain a business advantage. And the courts have reached the same conclusion where the plaintiff did not contemplate a personal fee, or the defendant could not reasonably have supposed that he did As one court has pointed out:

chagrin, disappointment, vexation, or supposed ingratitude cannot be used as a subsequent basis for a claim for compensation where none was originally intended or expected.

Nor, we add, can an uncommunicated expectation of remuneration serve the plaintiff’s purpose where the defendant had no cause to believe that such was the fact.

Thus we come full circle to the identical considerations which were dis-positive of Bloomgarden’s claim for recovery on an implied-in-fact contract. There simply was no basis on which a jury could rationally find that when he brought the parties together he entertained any thought of a finder’s fee for himself, or that those with whom he dealt held the payment of such a fee in prospect These circumstances defeat Bloomgarden’s quasi-contract claim as well. On what emerges clearly and un-disputably from the record, we find that the District Court was fully warranted in holding that, as a matter of law, Bloomgarden was not entitled to recover on either a contract implied-in-fact or a quasi-contract, and its action in so doing is accordingly

Affirmed.

      . See Fed.R.Civ.P. 56.

      . See id.

      . See D.C.Code § 45-1401 ot seq. (1967).

      . SDI was organized in 1969 by David Car-ley and a business associate, each owning 45% of its capital stock. Bloomgarden was made president at a fixed annual salary coupled with a 10% stock interest and an option to acquire another 10%.

      . Sec note 4, supra.

      . In February, 1970, PFA became a subsidiary of Inland Steel Company (Inland Steel), and in April its name was changed to Inland Steel Development Corporation (ISDC).

      . As will appear, Inland Steel subsidiaries were later to assume a prominent role in the project contemplating development of the Georgetown waterfront. See notes 9-10, infra, and accompanying text.

      . The conversation, as portrayed by Bloom-garden on deposition, was:
      Q. You had discussed the [SDI] role in this project in February with Mr. Coyer, had you not?
      A. Yes, I had in the cab coming from the Palmer House to the airport . . . . Bill Guy said to me at some point and not in any context — I don’t even know what we were discussing— he surprised me with the question, “Hank, if this project goes through, what do you expect out of it?” And I really wasn’t prepared for the question because I had not thought it through in detail and I really didn’t know in detail what I expected out of it. I expected something out of it and something substantial. I said, “Well, for one tiling we have some capability in the environmental field and Chuck Coyer mentioned a possibility of a closed energy system here,” and I said “We might be involved in that kind of thing.” That was about the whole conversation. We did not at that point discuss a finder’s fee or anything else.

      . By this time PFA, Carley’s firm, had become ISDC, a wholly-owned subsidiary of Inland Steel. See note 6, supra. The April agreement provided that if after further study ISDO decided to proceed with the Georgetown waterfront project, a new organizational structure for developmental purposes would be erected. The agreement further provided that ISDO would have the principal financing responsibility, Coyer and Guy the principal responsibility for assembling and acquiring the land, and that ISDO would share profits and losses with Coyer and Guy on an 80-20 basis.

      . The stock of each of the corporations was allocated 80% to ISDC and 10% to Coyer and Guy each. ISDC became obligated to finance the costs of land purchase and development.
      Only one of the five new corporations—Georgetown-Inland — was made a party to Bloomgarden’s lawsuit, and his motion to add the other four apparently was never ruled on by the District Court. In the view we take of the case, that is without consequence.

      . The change from a company to a personal claim resulted from SDI’s ultimate decision not to participate in the Georgetown waterfront project. On October 30, 1969, Carley had entered into a five-year employment contract with Inland Steel, effective January 22, 1970, by which Car-ley bound himself to full-time service for one of Inland Steel’s divisions and agreed that he would not become financially interested in any business which was competitive with his new employer. After the Georgetown project was agreed upon, Bloomgarden requested SDI to take part, but Carley, because of his employment relationship, felt that SDI should avoid any business undertaking involving Inland Steel or ISDC. SDI’s board of directors sustained Carley’s decision.

      . D.C.Code § 45-1401 (1967).

      . D.C.Code § 45-1407 (1967).

      . Fed.R.Civ.P. 56; Vickery v. Fisher Governor Co., 417 F.2d 466, 468 (9th Cir. 1969); 6 J. Moore, Federal Practice ¶ 56.27 [1] at 2973 (2d ed. 1972).

      . See Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 271, 466 F.2d 440, 442 (1972); Semaan v. Mumford, 118 U.S.App.D.C. 282, 283, 335 F.2d 704, 705 (1964); 6 J. Moore, Federal Practice ¶ 56.04 [1] (2d ed. 1972).

      . Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944); National Life Ins. Co. v. Silverman, 147 U.S.App.D.C. 56, 71, 454 F.2d 899, 914 (1971).

      . Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Underwater Storage, Inc. v. United States Rubber Co., 125 U.S.App. D.C. 297, 300, 371 F.2d 950, 953 (1966) ; Wittlin v. Giacalone, 81 U.S.App.D.C. 20, 21, 154 F.2d 20, 21 (1946).

      . Adickes v. S. H. Kress & Co., supra note 17, 398 U.S. at 160, 90 S.Ct. 1598.

      . Evers v. Buxbaum, 102 U.S.App.D.C. 334, 335, 253 F.2d 356, 357 (1958); Dean Constr. Co. v. Simonetta Concrete Constr. Corp., 37 F.R.D. 242, 245 (S.D.N.Y.1965); PAC Constr. Co. v. New York Factors, 191 F.Supp. 643, 646 (W.D.Pa.1961).

      . Fed.R.Civ.P. 56(e) ; 6 J. Moore, Federal Practice ¶ 56.11 [1-3] (2d ed. 1972).

      . See notes 35, 66, infra.

      . See note 8, supra.

      . See text infra at note 24.

      . The events referred to in the last sentence of the quoted material occurred when SDI decided not to take part in the Georgetown project, and that decision was not made until long after the parties had been brought together. See note 11, supra. Thus, by Bloomgarden’s own statement — which harmonizes with all else in the record — his expectation was at most a benefit for his company, rather than for himself, at the time he introduced the parties.

      . See note 8, supra.

      . Adickes v. S. H. Kress & Co., supra note 17, 398 U.S. at 157, 90 S.Ct. 1598; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Nyhus v. Travel Management Corp., supra note 15, 466 E.2d at 442; Semaan v. Mumford, supra note 15, 118 U.S.App.D.C. at 283, 335 F.2d at 705.

      . Fed.R.Civ.P. 56(e); Richardson v. Rivers, 118 U.S.App.D.C. 333, 336, 335 F.2d 996, 999 (1964); Dewey v. Clark, 86 U.S. App.D.C. 137, 141, 180 F.2d 766, 770 (1950).

      . See text supra at note 14.,

      . Compare Koepke v. Fontecchio, 177 F. 2d 125, 127 (9th Cir. 1949).

      . For a discussion of the distinction between quasi-contracts and contracts implied in fact, see 1 Williston, Contracts § 3A (3d ed. 1957).

      . Roebling v. Anderson, 103 U.S.App.D.C. 237, 241, 257 F.2d 615, 619 (1958); Crosby v. Paul Hardeman, Inc., 414 F.2d 1, 7 (8th Cir. 1969); Woodruff v. New State Ice Co., 197 F.2d 36, 38 (10th Cir. 1952).

      . See text infra at notes 43-51.

      . Maple Island Farm v. Bitterling, 209 F.2d 867, 871-872 (8th Cir. 1954); Thompson v. United States, 308 F.2d 628, 633 (9th Cir. 1962); Woodruff v. New State Ice Co., supra note 31, 197 F.2d at 38; Batts v. Snook, 268 Ky. 682, 105 S.W.2d 843, 846 (1937); Kimbrough v. Smith, 201 Miss. 202, 28 So.2d 850, 853 (1947); Ford v. Gibson, 191 Va. 96, 59 S.E.2d 867, 870 (1950); Segnitz v. A. Grossenbach Co., 158 Wis. 511, 149 N.W. 159, 160 (1914).

      . City Builders’ Finance Co. v. Stahl, 90 Fla. 357, 106 So. 77, 78 (1925); Western Oil Ref. Co. v. Underwood, 83 Ind. App. 488, 149 N.E. 85, 86 (1925); In re Coho’s Trust, 421 Pa. 448, 219 A.2d 657, 658-659 (1966).

      . That is because an implied-in-fact contract to compensate for services arises, if at all, at the time the services are rendered, and only if the then-existing circumstances enable implication of a contract does it come into being. These precepts are elemental, and so much is implicit in the decisions holding that services performed without expectation of remuneration or simply in expectation of a non-monetary business advantage do not warrant implication of a contract to pay. In all of these cases there was at some point a change of heart, and an effort in the suit to recover cash compensation not contemplated when the acts were performed. See cases cited supra note 33.

      . Supra note 33.

      . Id. at 869.

      . Id. 209 F.2d at 870.

      . Id.

      . Id. at 870-871.

      . Id. at 873.

      . Id. at 872.

      . Id.

      . Id. at 871-872.

      . Id.

      . See text supra at note 25.

      . See text supra at note 24.

      . See text supra following note 25.

      . See text supra at note 30.

      . See Roebling v. Anderson, supra note 31, 103 U.S.App.D.C. at 241, 257 F.2d at 619; Schenley Distillers Corp. v. Kinsey Distilling Corp., 136 F.2d 350, 352 (3d Cir. 1943); Miller v. Schloss, 218 N.Y. 400, 113 N.E. 337, 339 (1916).

      . Roberge v. Cambridge Cooperative Creamery, 248 Minn. 184, 79 N.W.2d 142, 150 (1956).

      . Roebling v. Anderson, supra note 31, 103 U.S.App.D.C. at 241, 257 F.2d at 619; Schenley Distillers Corp. v. Kinsey Distilling Corp., supra note 50, 136 F.2d at 352; Fayette Tobacco Warehouse Co. v. Lexington Tobacco Bd. of Trade, 299 S.W.2d 640, 643 (Ky.), cert. denied, 355 U.S. 824, 78 S.Ct. 32, 2 L.Ed.2d 39 (1957); 1 Williston, Contracts § 3 (3d ed. 1957). Relief by quasi-contract is really an equitable remedy which the common law labeled a contract in order to fit it into the procedural mold of assumpsit long before equitable doctrines became fully developed. Fayette Tobacco Warehouse Co. v. Lexington Tobacco Bd. of Trade, supra, 299 S.W.2d at 644.

      . United States v. O. Frank Heinz Constr. Co., 300 F.Supp. 396, 399 (S.D.Ill.1969); Cottingham v. National Mut. Church Ins. Co., 290 Ill. 26, 124 N.E. 822, 825 (1919); Hartford Fire Ins. Co. v. Wade, 208 Okl. 573, 257 P.2d 1064, 1067 (1953); Mead Bros. v. State Indus. Comm’n, 144 Okl. 279, 291 P. 571, 572 (1930).

      . See text supra at notes 26-29,

      . Chase Manhattan Bank v. Banque Intra, S.A., 274 F.Supp. 496, 499 (S.D.N.Y. 1967). See also cases cited infra notes. 56-62.

      . Roebling v. Dillon, 109 U.S.App.D.C. 402, 403, 288 F.2d 386, 387, cert. denied, 366 U.S. 918, 81 S.Ct. 1095, 6 L.Ed.2d 241 (1961); Osborn v. Boeing Airplane Co., 309 F.2d 99, 102 (9th Cir. 1962); Templeton Patents Ltd. v. J. R. Simplot Co., 220 F.Supp. 48, 60 (D. Idaho 1963).

      . Roebling v. Dillon, supra note 56, 109 U.S.App.D.C. at 403, 288 F.2d at 387; Chandler v. Washington Toll Bridge Authority, 17 Wash.2d 591, 137 P.2d 97, 102 (1943); Kerr v. King County, 42 Wash.2d 845, 259 P.2d 398, 403 (1953); Restatement of Restitution § 1, comment c (1937).

      . Dunn v. Phoenix Village, Inc., 213 F. Supp. 936, 952 (W.D.Ark.1963).

      . Osborn v. Boeing Airplane Co., supra note 56, 309 F.2d at 102; Restatement of Restitution §§ 2, 112 (1937).

      . Dunn v. Phoenix Village, Inc., supra note 58, 213 F.Supp. at 956; Gould v. American Waterworks Serv. Co., 52 N.J. 226, 245 A.2d 14, 16-17 (1968), cert. denied, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 477 (1969); Anderson v. Distler, 173 Misc. 261, 17 N.Y.S.2d 674, 679 (Sup. Ct.1940). Each of these cases involved an attempt to recover compensation for activities which the plaintiff engaged in for the purpose of securing future business with the defendant or others. Together the cases indicate a parallel line of authority in quasi-contract to the same principle applied to contracts implied in fact in Maple Island Farm v. Bitterling, supra note 33, discussed in text supra at notes 37—45. See Restatement of Restitution §§ 40-41 (1937).

      . Osborn v. Boeing Airplane Co., supra note 56, 309 F.2d at 102; Dunn v. Phoenix Village, Inc., supra note 58, 213 F.Supp. at 956; William A. Meier Glass Co. v. Anchor Hocking Glass Corp., 95 F.Supp. 264, 269 (W.D.Pa.1951) ; Bellanca Corp. v. Bellanca, 53 Del. 378, 169 A.2d 620, 623 (1961) ; Anderson v. Distler, supra note 60, 17 N.Y.S.2d at 679 ; Kerr v. King County, supra note 57, 259 P.2d at 403.

      . Bellanca Corp. v. Bellanca,” supra note 61, 169 A.2d at 623. Recovery for the value of services which have inured to another’s benefit is not generally allowed unless they were received with reason to know that compensation was expected for them. 13 S. Williston, Contracts § 1575 (3d ed. 1970).

      . Anderson v. Distler, supra note 60, 17 N.Y.S.2d at 679.

      . See note 62, supra.

      . See Part III, supra.

      . As in the instance of an implied-in-fact contract, the circumstances allegedly creating a quasi-contractual obligation to pay for services must have existed when the services were performed. No unfairness results from a denial of compensation to the claimant who had no expectation of personal remuneration at the time of performance. On the contrary, it would be unjust to impose a liability for payment on the party who accepts the services without any warning, from the surrounding circumstances or otherwise, that they were rendered for a price.

      . See text supra at notes 20-24.

      . See text supra at note 25.

      . Appellant relies on Bradkin v. Leverton, 26 N.Y.2d 192, 309 N.Y.S.2d 192, 257 N.E.2d 643 (1970) and Miller v. Stevens, 224 Mich. 626, 195 N.W. 481 (1923), but these cases are distinguishable. In Bradkin, the plaintiff had an enforceable written contract with his employer, a finance company, to receive a finder’s fee for every corporation in need of financing which he found. On one occasion, the plaintiff found a company interested in borrowing money, but the defendant, an officer of plaintiff’s employer, made the loan personally to the company, thereby depriving the plaintiff of his fee. The court upheld the plaintiff’s quasi-contractual recovery against the officer, 309 N.Y.S.2d 192, 257 N.E.2d at 647. In the instant case, there was no written contract, nor was there any action by appellees'which deprived Bloom-garden of that which was rightfully his.
      In Miller, there was a suit for compensation by a plaintiff who had found a purchaser for a dye plant which the defendant wished to sell. The court affirmed a verdict for the plaintiff, holding that the facts raised a jury question on the issue of the plaintiff’s intent to be compensated. 195 N.W. at 483. In contrast, Bloomgarden, by his own admission, had no intention of receiving payment personally from appellees when he introduced them.