text:
    John R. HENRY, Jr., Plaintiff-Appellee, v. Amalie SNEIDERS, and Amalie Sneiders, as Personal Representative of the Estate of Maksis Sneiders, Deceased, Defendant-Appellant.
    No. 72-2096.
    United States Court of Appeals, Ninth Circuit.
    Jan. 11, 1974.

      Vaughn E. Evans (argued) Jack Steinberg, Steinberg & Steinberg, Seattle, Wash., for defendant-appellant.
    C. Henry Heckendorn, Heckendorn & Judd, Seattle, Wash., for plaintiff-appel-lee.
    Before DUNIWAY and WRIGHT, Circuit Judges, and EAST, District Judge.

       Of the District of Oregon.

   PER CURIAM.

This is an action for fraud and breach of contract arising from the sale of rare stamps through the mail. The plaintiff alleged that the defendants, Amalie Sneiders and Maksis Sneiders, who is now deceased, sold counterfeit stamps, misrepresented by them to be genuine, to the plaintiff. Proceeding under Fed. R.Civ.P. 34, plaintiff sought discovery of certain records concerning the disputed transactions. Following defendant’s repeated refusal to produce these records, the district court entered default judgment in favor of the plaintiff pursuant to Fed.R.Civ.P. 37(b)(2). Defendant appeals, and we affirm.

We consider appellant’s six assignments of error separately.

1. Were the defendant’s records protected by the privilege against self-incrimination? After the commencement of this civil action, the appellant and her husband were indicted for mail fraud, the indictment being based in part on the sale of stamps to the plaintiff. The indictment against the defendant was dismissed following the death of her husband, but the dismissal was without prejudice. Since the defendant was subject to criminal prosecution for the transaction at issue in the instant civil case, she claims that records concerning that transaction are protected by the Fifth Amendment privilege against self-incrimination.

The claim is without merit. Under an agreement between the prosecutor and appellant’s husband, the records were handed to the postal authorities in connection with the criminal proceedings. Therefore, even if the records were incriminating, their disclosure in the civil case would not have tended to incriminate the defendant. Any incriminating information was already in the hands of the prosecuting authorities.

2. Was the default judgment greater in amount or different in kind than that prayed for in the complaint? Fed.R. Civ.P. 54(c) provides that a

judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.

The appellant argues that the judgment was different in kind from that prayed for in that it ran against her personally rather than as a member of the marital community. The plaintiff, however, prayed “for judgment against the defendants and each of them, and the marital community composed of them.” (Emphasis added.) Therefore, the personal default judgment conformed to the pleadings.

The appellant also argues that the default judgment for $235,338.89 exceeded the $71,243.68 prayed for in the complaint. That part of the prayer, however, was for the' amount that the plaintiff had paid to the defendants. In addition, plaintiff prayed for additional damages for breach of contract, the amount of which was to be proved at trial. The prayer was not limited to $71,243.68, and the default judgment did not exceed the amount prayed for.

3. Should the district court have granted summary judgment in favor of defendant? Appellant argues that plaintiff lacked sufficient evidence with which to prove his case and that summary judgment against him should have been awarded. Any insufficiency of the plaintiff’s evidence was a direct result of appellant’s refusal to comply with a legitimate request for discovery. The assignment of error is, therefore, entirely without merit.

4. Should the trial judge have been disqualified for prejudice? Appellant draws our attention to a number of dialogues between the trial judge and appellant’s counsel in an effort to show prejudice on the part of the trial judge. The trial judge understandably expressed dissatisfaction and frustration over appellant’s repeated refusals to produce the records. But our review of the record reveals that, notwithstanding this understandable frustration, the trial judge was extremely fair to the appellant and her claim of privilege. She was given repeated opportunities to produce the documents and avoid a default judgment, but she continued to refuse.

There is no evidence whatsoever of prejudice or improper conduct on the part of the trial judge.

5. Was appellant entitled to a jury trial on the issue of damages? After entering default judgment on the issue of liability, the district court held a hearing to determine the amount of damages. Although appellant had asked for a jury on that issue, the court denied the request and proceeded without a jury.

Fed.R.Civ.P. 55(b)(2) authorizes a district court to hold an evidentiary hearing following a default judgment to determine damages. The Rule preserves the right of trial by jury “when and as required by any statute of the United States.” Appellant cites no “statute of the United States” requiring a jury trial under these circumstances. Nor is this court aware of any such statute. Therefore, the Rule does not itself require a jury trial on the issue of damages.

Nor does the appellant have a constitutional right to a jury trial under these circumstances, since the Seventh Amendment right to trial by jury does not survive a default judgment. Brown v. Van Braam, 3 U.S. 344, 3 Dall 344, 1 L.Ed. 629 (1797); Midland Contracting Co. v. Toledo Foundry and Machine Co., 154 F. 797 (7th Cir. 1907); Johnson v. Bridgeport Deoxidized Bronze and Metal Co., 125 F. 631 (C.C.D.Conn.1903); Raymond v. Danbury & N. R. Co., 20 Fed.Cas. No. 11,593, p. 332 (C.C.D. Conn.1877); Gill v. Stolow, 18 F.R.D. 508 (S.D.N.Y.1955), rev’d on other grounds, 240 F.2d 669 (2d Cir. 1957); 6 Moore’s Federal Practice ¶ 55.07.

6. Was the appellant denied a fair opportunity to offer evidence on the issue of damages? Appellant argues that she was precluded from offering evidence at the hearing to determine damages. Although some evidence was excluded, it would have been relevant only as to liability and, since liability was not then an issue, the evidence was properly excluded as irrelevant. Appellant draws our attention to no excluded evidence which was relevant to the issue of damages.

Although she does not explicitly assign it as error, the appellant also argues that the district court made no formal order for discovery. Since default under Fed.R.Civ.P. 37(b)(2) is permitted only for refusal to comply with a court order for discovery, appellant argues that default was improper. It is true that the district court did not issue a written order directing the appellant to produce the records. It is clear from an examination of the oral proceedings, however, that the district court had orally ordered appellant to produce the records. Where oral proceedings unequivocally give a litigant notice that certain documents are to be produced, the absence of a written order does not preclude the entry of a default judgment for failure to comply. See Jones v. Uris Sales Corp., 373 F.2d 644 (2d Cir. 1967); Moore’s Federal Practice, ¶ 37.03.

Each of appellant’s assignments of error is without merit. The judgment of the district court is affirmed.

The mandate will issue at once.

      . “If a party . . . fails to obey an order to provide or permit discovery . . ., the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . .
      “(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

      . Plaintiff prayed as follows:
      “By reason of breach of the contract, misrepresentation, and fraud of the defendants, Plaintiff has suffered a direct loss of the purchase price in the amount of $71,243.68, together with additional amounts not yet fully determined for appraisal examination costs, loss of the value of the stamps as represented, legal expenses and attorneys’ fees, embarrassment, anxiety, and loss of health, the full amounts of which Plaintiff will prove at the time of trial. . .
      “WHEREFORE, Plaintiff prays for judgment against the Defendants and each of them, and the marital community composed of them, in the sum of $71,243.68 damages for funds fraudulently procured, and for Plaintiffs other damages as are proved at the time of trial, together with interest and costs.” (Emphasis added.)

      . “If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.” Fed. R.Civ.P. 55(b)(2). (Emphasis added.)


source: Caselaw Access Project

author: ROSENN, Circuit Judge.

license: Public Domain

text:
    Forrest MURPHY et al., Appellants, v. Leonard LANDSBURG, Individually and as Trustee of the Estate of Adolph L. Tafel, Deceased, Boericke & Tafel, Inc., a Pennsylvania corporation, et al.
    No. 73-1284.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 24, 1973.
    Decided Dec. 28, 1973.
    Certiorari Denied April 35, 1974.
    See 94 S.Ct. 1941.

      Victor Wright, Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., for appellants.
    James Francis Lawler, Ostroff & Lawler, Philadelphia, Pa., for appellee.
    J. Stokes Adams, III, Hart Childs Hepburn Ross & Putnam, Philadelphia, Pa., for Boericke & Tafel, Inc., D. Lee and G. H. Tafel.
    Before BIGGS, GIBBONS, and RO-SENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania granting defendant’s motion for summary judgment on two counts of plaintiffs’ six-count complaint. Plaintiffs, Forrest Murphy, Virginia W. Murphy, Forrest J. Murphy, Jerry J. Murphy, and Mary V. Murphy, d/b/a Utah Oil Land Company (Murphy) brought this diversity action alleging various causes of action against four defendants. This appeal involves the first two counts of the complaint, charging one of the four named defendants, Leonard Landsburg (Lands-burg), both individually and as Trustee of the Estate of Adolph L. Tafel, with breach of contract* After considering the contentions of the parties, we affirm the judgment of the district court.

In April 1971 Landsburg, as trustee of the Estate of Adolph L. Tafel, deceased, owned 750 shares of the common stock of Boericke & Tafel, Inc. (B&T). These shares constituted 54.94% of the outstanding stock of the corporation. Under the by-laws of B&T, 60% of the common stock was required for control.

By written proposal dated July 7, 1971, Murphy submitted an offer to Landsburg to purchase all of the outstanding shares of B&T at a price of $240 per share. The offer provided that payment would be made within one week “after the effectuation of full operating control of the business by the purchasers” and additionally, that:

If the number of shares tendered in response hereto is less than the number of shares required to effect a complete liquidation of the B&T Corporation then this offer may be declared by the purchasers to be null and void.

The offer stated it was to be effective until August 16, 1971, subject to extension at the option of the purchaser.

Two days later Landsburg, acting through his attorney, accepted by letter the offer as to the 750 shares held by the Trust at a price of $250 per share. Landsburg additionally agreed to tender Murphy’s proposal to all B&T minority shareholders “to make [Murphy’s] proposal effective.” The acceptance was subject to the approval of the Orphans’ Court of Philadelphia County.

Murphy’s written reply, dated July 13, 1971, confirmed the new price of $250 per share and the condition of Orphans’ Court approval.

In an effort to acquire a controlling interest in B&T, Landsburg, on July 30, 1971, made a tender offer to purchase the stock of the minority stockholders of B&T. He was unsuccessful in securing any affirmative response.

By letters dated August 9, September 13, and November 2, 1971, Murphy ultimately extended the expiration date of the proposal to December 1,1971.

On November 23, 1971, Murphy telephoned Lawler, Landsburg’s attorney, and told him that he did not want to delay the closing any further and was prepared to purchase the 750 shares of B&T stock for $187,500 and waive the condition of control. Although disputed, Lawler claimed that he told Murphy to put the waiver in writing. Landsburg subsequently received a letter dated November 23, 1971, in which Murphy wrote:

With reference to the 750 shares of Bóericke & Tafel, Inc. common stock owned by the Adolph L. Tafel Trust, I hereby extend until January 15, 1972, the closing of the agreement formed by my proposal of July 7, 1971 and your acceptance thereof dated July 9, 1971.

On December 1, 1971, Landsburg mailed out solicitations for sealed bids to several parties, including Murphy, for the sale of the Trust’s 750 shares of B&T stock. By letter dated December 3, 1971, Murphy, through his attorney, informed Landsburg of his desire to complete the purchase of the 750 shares at a price of $187,500 and of his waiver of the condition requiring corporate control. Enclosed was a cashier’s check for $37,500 representing the first of five annual payments under his initial proposal. Landsburg received an additional bid for the purchase of the 750 shares in the amount of $221,000 from Donald Lee, president of B&T, on behalf of the corporation.

By letter dated December 13, 1971, Landsburg notified Murphy that he had sold the 750 shares to B&T at a higher price and returned Murphy’s cashier’s cheek. One week later, Landsburg filed a petition with the Orphans’ Court. His petition described the initial transaction with Murphy and the later negotiations with B&T and requested that in the interest of the Trust, the sale to B&T be approved. Murphy filed objections to Landsburg’s petition. On January 4, 1972, a hearing was held at which Murphy appeared and participated. He testified and vigorously argued that he had a binding contract with Landsburg for the purchase of the 750 shares which preceded any subsequent contract with B&T. He acknowledged, however, that in late October 1971, when Landsburg offered to sell him the 750 shares without corporate control, he refused. He additionally argued that Landsburg’s agreement to sell his 750 shares to B&T was not in the best interest of the Trust because, although B&T offered a higher purchase price, payment was spread over a period of several years and security for the payment of the purchase price was inadequate.

On February 15, 1972, the Orphans’ Court approved the sale of the 750 shares to B&T. Murphy took no exceptions to that decree nor did he lodge any appeal with the Supreme Court of Pennsylvania. One week prior to the Orphans’ Court decree, Murphy filed his complaint in the instant case seeking, inter alia, an injunction and damages for breach of contract.

On appeal Murphy contends, as he did before the Orphans’ Court, that he had a binding contract with Landsburg to purchase the Trust’s 750 shares of B&T stock subject only to the approval of the Orphans’ Court. The obligation to secure Orphans’ Court approval, Murphy further contends, was expressly assumed by Landsburg and was implicitly governed by a duty to act in good faith. Landsburg’s alleged breach consisted of his solicitation of higher bids while under an obligation to submit Murphy’s offer to the Court for approval.

At the outset we are confronted by the contention, urged by Landsburg, that the present action is barred by the doctrine of res judicata. Landsburg argues that both because the “gist” of Murphy’s claims before the Orphans’ Court and the district court arise out of the same set of operative facts and because the relief requested in both courts was similar, Murphy is barred from instituting the present suit.

Section 68 of the Restatement of Judgments (1942) provides:

(1) Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action .
(2) A judgment on one cause of action is not conclusive in a subsequent action on a different cause of action as to questions of fact not actually litigated and determined in the first action.

Comment (a) to Section 68 distinguishes the doctrines of res judicata and collateral estoppel. The former applies when the subsequent cause of action is identical to the original action. Its scope is broad — the original judgment is conclusive not only as to matters actually raised and litigated but also as to matters that could have been raised and litigated. The latter, collateral estoppel, applies when the subsequent cause of action differs from the original cause of action. Its scope is more limited. Only matters “actually litigated and determined by the [original] judgment” may collaterally estop a party in a subsequent proceeding. See IB Moore’s Federal Practice § 0.441 [2], at 3777 (2d Ed. 1965).

A comparison of the action before the Orphans’ Court with the instant action reveals that this case is more appropriately dealt with under the doctrine of collateral estoppel than res judicata. The petition before the Orphans’ Court essentially sought approval of a contract between Landsburg and B&T. It.was not, as is the present action, a suit for damages for breach of contract between Landsburg and Murphy. While Murphy did appear in the Orphans’ Court proceeding and raised the question of the existence of a contract between himself and the Trustee, the two proceedings involved different objectives and relief.

Even under the more limited doctrine of collateral estoppel, however, we believe that the decree of the Orphans’ Court approving the sale of stock to B&T precludes Murphy from arguing that Landsburg breached an outstanding obligation. The essence of the present breach of contract action lies in Murphy’s contention that Landsburg solicited higher bids while under a contractual duty to submit his proposal to the Orphans’ Court. This contention was disposed of in the course of the proceedings before that court.

The Orphans’ Court was presented with the question of which of two as-sumedly outstanding contracts was in the best interest of the Estate and ruled in favor of the higher B&T offer. In approving this bid, the Court in effect made an adjudication that Landsburg had no prior binding agreement with Murphy for the sale of stock and additionally rejected Murphy’s argument concerning the adequacy of security for the purchase price. While the Court did not expressly rule on the question of whether Landsburg breached an obligation to seek Orphans’ Court* approval of Murphy’s offer at the time he, Lands-burg, solicited bids, we believe that such a ruling can be fairly implied.

An examination of the record of the Orphans’ Court proceedings reveals that Murphy raised before that Court precisely the contention urged in the present action. The record reveals that the substance of the entire stock transaction with Murphy, including the negotiations, conditional proposal, conditional acceptance, and all other relevant facts were presented to the Orphans’ Court. Murphy and Landsburg personally appeared and participated in the Orphans’ Court proceedings and each testified concerning the transaction. The position of the parties in the district court and in the Orphans’ Court is essentially the same, Murphy asserting the existence of an obligation by Landsburg to submit Murphy’s proposal to the Court before soliciting any other bids, and Landsburg denying it. Murphy strenuously argued that the Trustee’s solicitation of bids was “improper and illegal.” Had the Court found that at the time of solicitation Landsburg was under an obligation to Murphy we doubt it would have approved the offer of another party knowing that such approval might have the effect of subjecting the Estate to damages for breach of the prior agreement.

Murphy argues that the Orphans’ Court decree is not binding on him because he brought this action in the district court one week before the Orphans’ Court entered its order. This contention is without merit. To be given res judicata or collateral estoppel effect, a judgment need not be entered prior to the commencement of the action in which the binding effect of the judgment is sought. Goldstein v. Ahrens, 379 Pa. 330, 108 A.2d 693 (1954); see, Restatement of Judgments § 43; IB Moore’s Federal Practice ¶ 0.405[1], at 627 n. 25 (2d Ed. 1965).

The judgment of the district court will be affirmed. Each party will bear its own costs.

      . The negotiations on behalf of the plaintiffs were conducted by Forrest Murphy.

      . In the first two counts, Murphy requested, in an amended complaint, both damages and injunctive relief. We have jurisdiction to hear this appeal under 28 U.S.O. § 1292 (a) (1).

      . Although the sale had been approved to B&T by the Orphans’ Court, Landsburg, as of the date of the application for the preliminary injunction, continued to hold the share certificates as security for the purchase price.

      . Because jurisdiction is based on diversity of citizenship, we apply the law of Pennsylvania with respect to a plea of res judicata or collateral estoppel. Blum v. William Goldman Theatres, 174 F.2d 914 (3d Cir. 1949). Pennsylvania follows the Restatement on Judgments, Section 68, as to the rule of collateral estoppel. Thai v. Krawitz, 365 Pa. 110, 73 A.2d 376 (1950).

      . Landsburg denied that he was under any obligation to Murphy on December 1, 1971, the date he mailed out solicitations for bids. He contended that any obligation regarding the Trust’s 750 shares was subject to the condition precedent that Murphy be given operating control of B&T. Murphy did not allege that Landsburg was ever in a position to offer Murphy sufficient shares to effect corporate control. Nor did Murphy contend either that he was .unaware of Landsburg’s inability to deliver control or that Landsburg failed to exercise good faith in his effort to secure control. Landsburg argued that as of December 1 that condition was neither satisfied nor effectively waived. He contended that Murphy’s letter of November 23 did not waive the condition and that he construed it as another (fourth) effort to unilaterally extend the original conditional proposal. On December 1, Landsburg, considering himself under no obligation to accept the new extension, elected to solicit bids having allegedly given prior notice thereof to Murphy. On December 8, after Landsburg had solicited bids, he received Murphy’s letter dated December 3 waiving the condition.
      It does not appear that the district court ruled on the question of whether Landsburg was under a binding obligation to submit Murphy’s proposal to the Orphans’ Court. In view of the lack of factual findings on the issue and because of our disposition of this case on the ground of collateral estop-pel, we decline to rule on this matter.


author: ALBERT V. BRYAN, Senior Circuit Judge:

text:
    GEORGE KOCH SONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. LOCAL UNION NO. 438, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 73-1019, 73-1480.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 3, 1973.
    Decided Dec. 14, 1973.

      Winthrop A. Johns, Washington, D.C. . and Joseph A. Yocum, Evansville, Ind. (Johns & Zimmerman, Washington, D.C. and Kahn, Dees, Donovan & Kahn, Evansville, Ind., on brief), for petitioner in No. 73-1019.
    Gerard C. Smetana, Chicago, Ill. (Milton A. Smith, Gen. Counsel, Otto F. Wenzler and Richard B. Berman, Labor Relations Counsel, Washington, D.C., S. Richard Pincus, Lederer, Fox & Grove, Chicago, Ill., on brief), for amicus curiae, The Chamber of Commerce of the United States in No. 73-1019.
    Vincent J. Apruzzese, Springfield, N. J. (Francis A. Mastro, Apruzzese & Mc-Dermott, Springfield, N.J., on brief), for amici curiae, Public Service Electric and Gas Co., etc., in Nos. 73-1019 and 73-1480.
    Cosimo C. Abato, Baltimore, Md. (Anthony A. Abato, Jr., Bracken & Abato, P. A., and Paul E. Gaeng, Baltimore, Md., on brief), for petitioners in No. 73-1480.
    Roger C. Hartley, Washington, D.C. (Patrick C. O’Donoghue and Donald J. Capuano, Washington, ,D.C., on brief), for amicus curiae, United Assn.
    Kenneth C. McGuiness and Robert E. Williams, Washington, D.C., on brief for amici curiae, Air-Conditioning and Refrigeration Institute, and others.
    Jay E. Shanklin, Atty., N.L.R.B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Washington, D.C., on brief), for respondent in Nos. 73-1019 and 73-1480.
    Before BRYAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.
   ALBERT V. BRYAN, Senior Circuit Judge:

A secondary boycott in violation of the National Labor Relations Act, Section 8(b) (4) (i) (ii) (B), 29 U.S.C. § 158(b) (4) (i) (ii) (B), as amended, was pursued by each of two labor unions, the National Labor Relations Board has found. On the charges of a general contractor, complaints were issued and jointly heard. In both cases the contractor, while accepting the Board’s decision, nevertheless sought review- in an endeavor to broaden the fact findings and legal conclusions; the unions asked vacation of the Board’s remedial order. Countering, the Board prays enforcement of its order. We enforce the order.

With a hearing before the Trial Examiner waived, the controversy was put before him on briefs and facts agreed. The Board adopted the “findings, conclusions and recommendations of the Administrative Law Judge [the Examiner] ”, summed up as follows:

“The relevant stipulated facts as noted by the Administrative Law Judge show that on June 17, 1970 George Koch Sons, Inc., hereinafter Koch, was awarded a contract by General Electric Company, hereinafter G.E., for the design, manufacture, and installation of two industrial finishing systems to be used in the preparation of metal appliances at G.E.’s plant in East Columbia, Maryland. Pursuant to a contract interpretation calling for the pretesting of certain pipes for this system, Koch prefabricated certain pipes at its Indiana facility using its own employees to do this fabrication work. Thereafter, this pipe was utilized to pretest the systems.

“Koch subcontracted to Phillips Plumbing and Heating Co., hereinafter Phillips, the work of installing all pipe required in the final assembly of the systems at the G.E. site. Pursuant to its contract with Koch and the specifications made a part thereof, Phillips was required to install, inter alia, the prefabricated pipe.

“Both Respondents [the unions] had a current agreement with the Mechanical Contractors Association of Maryland, hereinafter the Association. Although not a member of the Association, Phillips was a signatory to the current agreements and, pursuant to their provisions, employed members of Respondent Local 48 for plumbing work and members of Respondent Local 438 for steamfitting-pipefitting work. Both of these agreements contained the following clause:

‘All pipe of any size used on the job shall be cut and threaded by journeymen and apprentices either by machine or by hand and all fitting to be made up (of any size), caulked, or otherwise, fitted to any pipe, must be done on the job or in the contractor’s shop by journeymen and apprentices.’

As a result of these provisions, which have been included in the Respondents’ collective-bargaining agreements for years, the cutting, threading, and fitting of pipes have customarily been performed on the jobsite or in shops within the Baltimore vicinity by individuals who are employed by the employers signatory to the agreements and who are members of or are represented by the Respondents.

“Beginning about March 15, 1971, Koch shipped both the prefabricated pipe (that used in the pretesting) and certain nonprefabricated pipe to the G.E. jobsite. The employees of Phillips represented by the Respondents worked on and installed the nonprefabricated pipe without incident. But, when Phillips attempted to assign the work of installing the prefabricated pipe to the employees represented by the Respondents, Phillips was told by officers and agents of both Respondents that the Respondents would not let their members or employees represented by them install that prefabricated pipe because it had not been cut, threaded, and fitted on the jobsite or in Phillips’ shop in accordance with the above-quoted provisions of their agreements with the Association. Thereafter, since on or about May 1, 1971, Phillips’ employees who were members of or represented by the Respondents, pursuant to instructions from Respondents’ officials, refused to install the prefabricated pipe although requested to do so by Phillips, while they continued to install the nonprefabricated pipe.

“The Administrative Law Judge concluded that ‘by the actions of their officers and agents in stating to Phillips that they would not allow employees of Phillips who were members of or represented by Respondents to install the prefabricated pipe on the G.E. job because the pipes were not cut, threaded, and fitted with the facilities on the jobsite or in Phillips’ shop by employees represented by Respondents, or by so instructing employees of Phillips, both Respondents violated Section 8(b)(4) (i) (ii) (B)’ of the Act.

“We agree with this conclusion of the Administrative Law Judge. However, in view of the importance of the issue presented, we deem it necessary to explicate in detail our reasons for doing so.” [Footnotes omitted.]

Thereupon the unions were directed to “cease' and desist” from encouraging employees to refuse to perform services where the object was to force Phillips to refrain from installing prefabricated pipe. For us this conduct examples the classic secondary boycott. NLRB v. Operating Engineers, 400 U.S. 297, 302, 303, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). It is fair to state now that we see the Board’s decision, adjudging the unions guilty of a secondary boycott, firmly bottomed on substantial evidence.

The unions bear down on the Board’s opinion as but an all-out exploitation of the “right-to-control” doctrine. Untangled, the doctrine is that if an employer is not legally empowered to meet his employees’ demand, then they cannot lawfully strike him fo* his failure to accede. Applied now, the clauses of the Phillips-union agreements — that the pipe must be cut and threaded on the jobsite or at Phillips’ shop — could not be pressed against Phillips if it was not vested with the right to fix where pipe fabrication would be done.

The unions dismiss “right-to-control” as obsolete dogma, discredited, if not fully eclipsed, by National Woodwork Manufacturers Ass’n v. National Labor Relations Board, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967). Further, it is argued that this gauge, if at all still viable, is now misconceived by the Board as the end-all, critical determinant that a boycott is secondary rather than primary. Additionally, the unions expound those in suit to be work preservation clauses, purposed solely to retain for the Phillips’ employees tasks customarily performed by them and avouched in National Woodwork to be a traditional right of labor, in no wise affronting the Act.

In replication, the Board and Koch denounce the clauses as actually projected by the unions to be “tactically calculated to satisfy union objectives elsewhere.” National Woodwork, at 644, 87 S.Ct. at 1268. When so activated, the argument runs, the restrictions engender the forbidden secondary boycott. Cf. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 686, 687, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).

The unions err. National Woodwork did not scuttle the “right-to-control” test for, obviously, the point was not before the Court. 386 U.S. at 616-617, fn. 3, 87 S.Ct. 1250. Nor does the Board presently write in disregard of National Woodwork. Rather, it reads that decision for what it is, a delineation of that degree of proof which establishes a permissible primary boycott but falls short of evidencing the interdicted secondary boycott.

Further, National Woodwork, at 644-645, 87 S.Ct. at 1268, after defining a preservation-of-work boycott, signally declares that when “the agreements and boycott were tactically calculated to satisfy union objectives elsewhere” they present a secondary boycott. The further lesson of National Woodwork is that the ascertainment of whether the “agreements and boycott” do have this effect can be made only upon inquiry of “all the surrounding circumstances”. Notably, right-to-control is not excluded from this consideration. Id. at 644, 87 S.Ct. at 1268. Despite the union’s opposing contention, the Board has not exalted right-to-control as per se the conclusive indicium of a secondary boycott. On the contrary, the Board obediently followed the Court’s instruction, according weight to all existing and relevant circumstances. This consideration included extraordinary facts well beyond the events of National Woodwork.

The incidents not paralleled in National Woodwork were these: no right-to-control was possessed by the employer ; the unions were informed of the employer’s lack of control; the employer-contractor agreement required the fabrication to be done at the latter contractor’s location; and the contract between that contractor and the owner obligated that contractor to fabricate the pipe at its place of business. These circumstances are quite material in differencing the facts here from those of National Woodwork. The Court there did not have to ponder these added circumstances to the existence or absence of a secondary boycott. Thus it did not preordain decision here.

The decisive question, therefore, is whether in the light of “all the surrounding circumstances” the agreements and boycott between Phillips and the unions were “tactically calculated to satisfy union objectives elsewhere”. We think the Board was right in concluding that they were.

To begin with, since the unions were aware of the conditions in the Phillips-Koch pact, they knew that Phillips did not have control of the pipe fabrication. Consequently, their enforcement of the collective bargaining terms evinces the unions’ intention to press their objectives “elsewhere” other than upon Phillips.

Moreover, Koch and the unions were not in privity; neither was bounden to the other. Koch, then, was a neutral, and yet with regard to it the unions still sought to prosecute the conditions in order to “satisfy the union objectives” beyond Phillips. This, too, is precisely — • and even more emphatically — the posture of the unions with respect to G.E. To repeat, these facts confirm the Board’s finding of the tactical effect.

These conclusions are not gainsaid or diminished by the unions’ insistence that the stipulations are enforceable as work-preservation measures. The Board did not nullify the clauses as work-preservation assurances; they remained available for appropriate application. However, regardless of their initial in-tendment, they could by undue extension, over and above the Phillips-employee relationship, lead to violations of § 8(b) (4) (B) of the Act.

That the clauses have been so exerted in this instance is, it appears, precisely the illegality the Board perceived in the unions’ actions. Like the Board, we see Phillips as not an “offender” but rather a neutral vis-a-vis its employees; therefore the effect of the strike was to compel Phillips unlawfully “to cease doing business with any other person”. Granted, the efficacy of work-preservation covenants is not to be stunted because of the severity of their impact. National Woodwork, at 627, 87 S.Ct. 1250; see also NLRB v. Operating Engineers, supra, 400 U.S. 297, at 303, 91 S.Ct. 402, 27 L.Ed.2d 398. Nevertheless, if a result of that pressure is to cause a neutral employer (here Phillips) to terminate his business with another (Koch), then such enforcement fouls the Act. That this use or effect of the clauses is inconsistent with the intent of the Act is corroborated in National Woodwork, at p. 625,. 87 S.Ct. at p. 1258:

“The other subsections of § 8(b)(4) of the Act were similarly limited to protecting employers in the position of neutrals between contending parties .... The central theme pervading these provisions of protection for the neutral employer confirms that . . . Congress likewise meant to protect the employer only from union pressures designed to involve him in disputes not his own.”

See also Denver Building, supra, 341 U. S. 675, at 689, 71 S.Ct. 943, 95 L.Ed. 1284.

Joining the Board, we are unwilling to construe the Phillips-unions contract so rigidly as to trammel Phillips in its intercourse with customers outside of Maryland, e. g. Koch or G.E. So severe' an execution of the collective bargaining agreement would not only invade the rights of Maryland contractors, such as Phillips, but it would hobble their interstate transactions. Not to reprove the boycott of Phillips would be a plain discard of § 8(b) (4) (B). It would be tacit approval of the unions’ compulsion of Phillips to “cease doing business” with any person, in-State or out, not a signatory to the instant Maryland collective bargaining agreement.

Conversely, in like circumstances, not only Koch but every other in- or out-of-state contractor would be unable to contract with any Maryland business, which was a party to the collective agreement, without subjection to the agreement’s restrictive clauses. Incidentally, the employees of Koch and of like outsiders would at the same time suffer from these limitations.

Admittedly, an employer should not have an unfettered license to contract out work and, as a result, acquire a shield from union collective bargaining agreements. Certainly where the employer was initially in a position to accede to potential union demands through the negotiating stages of the contract, then he should not later be deemed a neutral if he intentionally forfeited his potential for control. But the circumstances now presented show that G.E. required Koch to pretest the pipe at the latter’s location in Indiana- — thus away from the jobsite — and for this purpose the pipe had first to be fabricated. Since Koch was inextricably tied to this schedule, Phillips had no bargaining power with respect to this work. Consequently, Phillips did not surrender its right-to-control, for it never had any.

Of course, Phillips and its immediate contractor could fake the appearance of a secondary boycott by a collusive contract providing that the work ordinarily belonging to Phillips' employees should be performed elsewhere. But there is not even an intimation or trace of connivance or such complicity here. Indeed, the extraordinary circumstances outlined earlier banish any suspicion of it. Phillips had no motive to favor the arrangement with Koch. Indeed, it deprived Phillips of profitable work.

Finally, we dispose of the case under § 8(b)(4)(B) of the Act, and notwithstanding references in the arguments of counsel to § 8(e), we observe nothing in the latter section to warrant modification of the conclusions herein expressed.

Order enforced.

      . Section 8(b)(4) of the Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959, provides, in apt part, that it shall be an unfair labor practice for a union or its agents :
      (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, article, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
      (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manu-
      facturer, or to cease doing business with any other person . . .

      . 201 NLRB No. 7 (January 5, 1973).

      . The unions were Locals No. 438 and 48, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. They will be referred to as the “unions”. The charging party was George Koch Sons, Inc., an Indiana corporation, a contractor for General Electric Company and now called “Koch”. No jurisdictional question is involved.

      . In Sachs v. Local Union No. 48, United Ass’n of Journeymen and Apprentices, 454 F.2d 879 (4 Cir. 1972), we sustained the Board’s application for an injunction under § 10(1) of the Act restraining the unions from engaging in the strike until the Board had ruled upon the present complaints.


author: McWILLIAMS, Circuit Judge.

text:
    Roy Lee POE, Petitioner-Appellant, v. John W. TURNER, Warden, Utah State Prison, Respondent-Appellee.
    No. 73-1163.
    United States Court of Appeals, Tenth Circuit.
    Jan. 23, 1974.
    Mary Lou Godbe, Salt Lake City, Utah, for petitioner-appellant.
    M. Reid Russell, Asst. Atty. Gen. (Vernon B. Romney, Atty. Gen., and David L. Wilkinson, Chief Asst. Atty. Gen., on the brief), for respondent-appellee.
    Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
   McWILLIAMS, Circuit Judge.

Roy Lee Poe was convicted in a Utah state court of murder in the first degree and sentenced to life imprisonment. On appeal his conviction was affirmed by the Utah Supreme Court. State v. Poe, 24 Utah 2d 355, 471 P.2d 870 (1970). Thereafter, pursuant to the provisions of 28 U.S.C. § 2254, Poe filed in the United States District Court for the District of Utah, Central Division, a petition seeking habeas corpus relief and alleging as grounds therefor that his right to confront and cross-examine adverse witnesses as guaranteed by the Sixth and Fourteenth Amendments had been violated in the state proceedings. The federal district court, after examining the record of the state proceedings, ruled that Poe’s constitutional right to confront adverse witnesses had not been thus violated and denied his petition. On appeal, we affirm.

The issue here presented relates to the use by the state in a retrial of a murder case of the transcript of testimony given by two witnesses in the first trial of the matter, the witnesses in question not being present when the case was tried a second time. Poe was first convicted by a jury of murder in the first degree and sentenced to death. At this trial, Louis Laguna, sometimes referred to as Louis Laguna, and Mary Miner testified for the state. The homicide in question had occurred in St. George, Utah, and La-guna, then a filling station attendant in Glendale, Nevada, testified that within a few hours after the time when the homicide apparently occurred, he had serviced in Glendale a vehicle driven by Poe and his description of the vehicle, coupled with other evidence, indicated that Poe at the time was driving the deceased’s automobile. Glendale, Nevada, is on Highway 91 which is apparently a direct route from St. George, Utah, to Las Vegas, Nevada. Laguna was vigorously cross-examined by Poe’s counsel in the first trial of this matter.

Mary Miner, as indicated, was also present and testified against Poe in the first trial. She was a waitress.in a cafe at Mesquite, Nevada, which is also located on Highway 91, and she testified that Poe had been in the cafe a few hours after the time when the homicide was believed to have taken place. Miner’s direct testimony was quite brief, and counsel did not cross-examine.

On appeal, the Utah Supreme Court reversed, holding that the trial court had abused its discretion in admitting into evidence colored slides made of the deceased during the course of an áutopsy and then permitting the slides to be displayed to the jury by means of a projector and screen. State v. Poe, 21 Utah 2d 113, 441 P.2d 512 (1968).

On the second trial of this matter, the State was unable to serve subpoenas on either Laguna or Miner and, in this regard, the State offered testimony from four witnesses detailing their unsuccessful efforts to locate either Laguna or Miner. The State then offered the certified transcript of the testimony given by Laguna and Miner on the first trial of the case. Over objection, the trial court permitted this transcript testimony to be read to the jury at the second trial. In so doing, the trial court relied on Utah Code Ann., 77-44-3 (1953), which provides that when a witness in a criminal ease has given testimony which is stenographically reported, and the witness thereafter dies or is beyond the jurisdiction of the court, his prior testimony may be read in evidence in the subsequent trial.

The second trial resulted in a verdict of guilty of murder in the first degree. However, the jury recommended leniency and the court accordingly sentenced Poe to life imprisonment. On appeal, as indicated, this conviction was affirmed. State v. Poe, 24 Utah 2d 355, 471 P.2d 870 (1970). In affirming, the Utah Supreme Court, among other things, concluded that the record supported the trial court’s determination that a sufficient foundation had been laid to warrant the introduction of the prior testimony of Laguna and Miner under the aforesaid provisions of Utah Code Ann., 77-44-3 (1953). In thus concluding, the Utah Supreme Court summarized the unsuccessful investigative efforts of the State to locate the missing witnesses.

The central issue in this case, as we see it, is whether the record shows a “good faith” effort on the part of Utah authorities to secure the presence of La-guna and Miner at Poe’s second trial. If the record so shows, then Poe’s confrontation rights under the Sixth and Fourteenth Amendments have not been violated. Let us first examine some of the numerous authorities on this particular point.

The Supreme Court has repeatedly held that the Sixth Amendment right of an accused to confront the witnesses who testify against him in a criminal proceeding is a fundamental right made obligatory on the states by the Fourteenth Amendment. See, for example, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). However, as far back as Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), there has been a traditional exception to the confrontation requirement where a witness is unavailable at a subsequent trial of the same case and has given testimony in a prior judicial proceeding against the same defendant under circumstances where the witness was fully examined and cross-examined. See also California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). As concerns the meaning of witness unavailability, in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), it was held that a witness is not unavailable for the purposes of this exception unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial.

Applying the foregoing principles to the present case, the transcribed testimony of witnesses Laguna and Miner given at Poe’s first trial could be used at Poe’s second trial if, and only if: (1) the prior testimony of Laguna and Miner were subject to cross-examination and otherwise bears an indicia of reliability; and (2) the State made a “good faith” effort to secure the presence of Laguna and Miner at the second trial, and were unable to do so. We conclude that both tests are fully met.

There is no suggestion of any problem as to the first test. Laguna and Miner testified in the first trial in open court in a full-fledged murder trial where Poe was represented, of course, by counsel. Laguna was cross-examined in detail. Counsel waived cross-examination of Miner, who, as mentioned, testified only briefly, and on a matter that was not a real issue. The transcribed testimony of Laguna and Miner meets the “indicia of reliability” requirement in all respects, quite unlike, for example, the situation in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), where the initial proceeding was a preliminary hearing at which the accused had no counsel and did not himself cross-examine.

Poe’s position in this court is that the record does not support the conclusion of the federal district court that the Utah authorities made a good faith effort to secure the attendance of Laguna and Miner at the second trial. We disagree. The record discloses that a representative of the Utah Attorney General’s office, a county attorney for Washington County, in Utah, the situs of the homicide, and the Sheriff of Washington County, were all engaged in attempting to locate Laguna and Miner, and it was determined to their satisfaction that neither of the witnesses was then residing in Utah, or, for that matter, ever had. The last known addresses of the two were in Nevada, and accordingly all three of these Utah authorities went to Nevada in their efforts to ascertain the present whereabouts of Laguna and Miner. But their efforts were unsuccessful, even though they enlisted the aid of a deputy sheriff of Clark County, in Nevada.

It is true that the investigative efforts of the Utah authorities in Nevada did disclose a couple of leads: (1) Miner was reported to have moved to somewhere in the state of New York; and (2) Laguna was said to have applied for employment with the Santa Fe Railway in the “midwest.” In this latter regard, counsel asserts that the Utah authorities should have checked out the leads in New York and the “midwest,” which they admittedly did not. We disagree. A good faith search does not mean that every lead, no matter how nebulous, must be tracked to the ends of the earth, figuratively speaking. Without belaboring the matter, we conclude, as did the federal district court, that the Utah authorities did make a good faith effort to locate Laguna and Miner. They did not stop at state boundaries, but went into Nevada, as they should have, in their efforts. This is certainly not a case where the Utah authorities made only a half-hearted effort, almost hoping that they couldn’t locate the missing witnesses and could then use their prior testimony and thereby avoid the additional cross-examination that might be made during the second trial of the matter. In sum, we conclude, as did the trial court, that the Utah authorities were acting in good faith.

In this court, counsel suggests that the federal district court misconceived the “standard” by which “good faith” is to be measured, and erroneously concluded that “good faith” simply meant that the Utah authorities need only determine that Laguna and Miner were not then in Utah, and could then stop at the state boundary. We do not believe this to be the basis of the federal district court’s ruling. The ruling of the federal district court, when considered as a whole, clearly indicates that there was no misconception on its part, that court noting that the search of the Utah authorities covered both Utah and Nevada and concluding, as we do, that the leads in New York and somewhere in the midwest were not of “sufficient substance to be within the purview of a good faith search.”

Similarly, the Uniform Act to Secure the Attendance of Witnesses is for obvious reasons not brought into play here, as it was in Barber v. Page, swpra, and the more recent case of Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). In those two cases the whereabouts of the witness in question was known, and hence the “good faith” requirement necessitated a further consideration of whether the prose-cutorial authorities, knowing the whereabouts of the witness in question, had taken reasonable steps to secure his presence at the retrial. Here, the whereabouts of the missing witnesses was not known at the time of the retrial, even though the Utah authorities had in good faith attempted to locate them.

Our disposition of the present controversy is well within the perimeters of Mason v. United States, 408 F.2d 903 (10th Cir. 1969). In that case, we held that a witness was “unavailable” even though physically present at the second trial, where the witness at the second trial refused to testify on the grounds of self incrimination, though he had been granted immunity. There, we noted the testimony was unavailable, even though the “body is available.” In the instant case, the bodies were unavailable, despite good faith efforts to locate them.

Judgment affirmed.


author: FRIENDLY, Circuit Judge.

text:
    CRANE CO., Plaintiff-Appellant, v. AMERICAN STANDARD, INC., et al., Defendants-Appellees. AMERICAN STANDARD, INC., Plaintiff-Appellant-Appellee, v. CRANE CO., Defendant-Appellee-Appellant. AMERICAN STANDARD, INC., Petitioner, v. Hon. Robert J. WARD, United States District Judge, and Crane Co., Respondents.
    Nos. 437, 438, 602 and 603, Dockets 73-2273, 73-2462, 73-2640 and 73-2641.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 19, 1973.
    Decided Dec. 19, 1973.

      David W. Peck, New York City (Sullivan & Cromwell, George C. Kern, Jr., Edward W. Keane and Robert M. Osgood, New York City, of counsel), for American Standard, Inc.
    John W. Castles, 3d, New York City (Lord, Day & Lord, Michael J. Murphy, Pomerantz, Levy, Haudek & Block; Abraham L. Pomerantz and William E. Haudek, New York City, of counsel), for Crane Co.
    Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
   FRIENDLY, Circuit Judge.

Four years after this court’s decision in Crane Co. v. Westinghouse Air Brake Co., 419 F.2d 787 (2 Cir. 1969), cert, denied, 400 U.S. 822, 91 S.Ct. 41, 27 L.Ed. 2d 50 (1970), we find the combatants, Crane Co. (Crane) and American Standard, Inc. (Standard), in a Brobdingnagian procedural imbroglio that has prevented any progress in carrying out our decision. During the week of September 10, 1973, this panel received a petition from Standard seeking the issuance of mandamus to require Judge Ward to vacate so much of his order of July 6, 1973, described below, as permitted Crane to seek damages on remand. When called upon for an answer, see F. R.App.P. 21(b), Crane informed us that Judge Ward was considering certification of his order under 28 U.S.C. § 1292(b), and we directed that if he did this, any motion for leave to appeal should be referred to us in light of the effect that grant of such leave would have on the mandamus petition. Judge Ward then certified his order of July 6 and a subsequent order of September 26, 1973, as well as an earlier order entered by Judge Mansfield (then in the District Court) on February 10, 1971. Crane moved that we grant leave to appeal and Standard joined in the request. Since it appeared that a ruling by this court on the important issues raised by the parties might prevent much waste of valuable time in the district court, we granted the motion. As the appeals permit us to examine all the issues free from any constraints concerning the limited office of mandamus, the petition for mandamus can be dismissed.

I.

While we shall assume familiarity with Judge Smith’s opinion when the case was last here, 419 F.2d 787, intelligibility requires some recounting.

The underlying controversy presents the familiar situation of a publicly-held company, here Westinghouse Air Brake, Inc. (Air Brake), confronted with a prospective take-over by a company not to its liking (here Crane) and turning to a more agreeable partner (here Standard). To enhance its prospects in the take-over effort, Crane had purchased large amounts of Air Brake stock; on February 20, 1968, it filed with the SEC statements under Schedule 14-B as required by Rule 14a-ll(c)(l) to enable it to solicit votes for the election of Air Brake directors. Air Brake’s stock was then selling on the New York Stock Exchange at about $36 per share. Shortly thereafter a majority of Air Brake’s directors agreed, subject to stockholder approval, to merge Air Brake into Standard for a convertible preferred stock worth about $50. This caused the Air Brake stock to rise to $44.

Continuing the usual scenario, Crane countered with an offer, good until 5 p. m. on April 19, to exchange Crane stock and debentures, also worth approximately $50, for each Air Brake share. At about the same time, Air Brake mailed proxies for a May 16 stockholders meeting seeking approval of its proposed merger into Standard. By April 10, Air Brake’s stock had risen to $49. Both Crane and Standard were heavy buyers. On April 17, 1968, Crane, again following the familiar script, brought the first of two suits in the District Court for the Southern District of New York. Alleging various misrepresentations in Air Brake’s proxy statement, the complaint sought injunctions against further solicitation and use of the proxies and “such other and further relief as to this Court may seem just and proper. .” The second (hereafter “the fraud action”), filed on May 6, 1968, sought to enjoin Standard from voting Air Brake stock or purchasing votes of Air Brake stockholders, from consummating the merger, and from engaging in any manipulative practices or other acts in violation of the Securities Exchange Act. The complaint did not seek damages but included a prayer for “such other and further relief as may be just and proper.”

The two actions were tried together before Judge Ryan, the applications for a preliminary injunction being consolidated with a trial on the merits pursuant to F.R.Civ.P. 65(a)(2). No request was made for a jury trial. The trial began on May 21. This was five days after the Air Brake stockholders meeting, but the proxies were still being tallied at that time. We were told at argument that the judge received daily reports of the voting and that it was apparent before his decision that votes sufficient to authorize the merger had been obtained. On June 5,1968, the judge dismissed both complaints; on June 7 the merger was consummated.

On Crane’s appeal to this court, Standard prevailed on every point save one. This was a claim by Crane in the fraud action relating to transactions in Air Brake stock by Standard on April 19, 1968. The transactions were a series of open market cash purchases of 170,200 shares of Air Brake at an average price of $49.08 per share accompanied by undisclosed sales of 100,000 shares to a well-disposed investment company at 44% and of 20,000 shares to a well-disposed investment banking house at 44%. Standard contended that its purpose was simply to increase its voting position in Air Brake while keeping its holdings of Air Brake shares below 10% in order to avoid problems under § 16(b) of the Securities Exchange Act and for other reasons. Rejecting that argument, the court concluded, 419 F.2d at 793, that Standard had intentionally created “the appearance of an extraordinary demand for Air Brake stock and a dramatic rise in market price, as a result of which Air Brake shareholders were deterred from tendering to Crane.” The court held that this conduct violated § 9(a)(2) of the Securities Exchange Act, which makes it illegal to effect “a series of transactions in any security registered on a national securities exchange creating actual or apparent active trading in such security or raising or depressing the price of such security, for the purpose of inducing the purchase or sale of such security by others,” and that non-disclosure of the sales violated SEC Rule 10b-5(3) which makes it illegal “to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” Apparently because of Crane’s later forced sale of the American Standard stock it received in the merger, 419 F.2d at 794, the court further concluded that Crane came within the class of persons whom § 9(e) protects against violation of § 9(b), to wit, “any person who shall purchase or sell any security at a price which was affected by such act or transaction.” Finally, the court held that under Vine v. Beneficial Finance Co., 374 F.2d 627, 634-635 (2 Cir.), cert, denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460 (1967), Crane met the “in connection with” requirement of Birnbaum v. Newport Steel Co., 193 F.2d 461 (2 Cir.) cert, denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952).

On the basis of these conclusions, the court reversed the dismissal of the complaint in the fraud action. At two points in its opinion, it gave instructions concerning further proceedings in the case. After quoting a passage from Vine, supra, 374 F.2d at 635, to the effect that the plaintiff need not show he was misled if “there was deception which misled [other] stockholders and that this was in fact the cause of plaintiff’s claimed injury,” the court said, 419 F.2d at 797:

Standard’s deception caused injury to Crane. Crane’s tender offer could only be successful if its value to investors was attractive in comparison with the indicated value of Air Brake on the New York Stock Exchange. The extent of the damage will have to be determined by the District Court, in fashioning an appropriate remedy, and the burden of proof thereon will be on Crane. It is sufficient that the causation requirement is satisfied here to the extent of imposing liability upon Standard for the consequences of concealing from the public material information relevant to the market value of Air Brake in a free market.

In the concluding paragraphs of the opinion, the court said, 419 F.2d at 803-804: the judgment below dismissing the claim based upon market manipulation and deception, and remand for a further determination in the District Court of the appropriate remedies. Without limitation, these remedies may include damages, if any, prospective injunctive relief, as well as appropriate retrospective relief, notwithstanding the consummation of the merger. See J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed. 2d 423, supra. The manipulation may be found to have deprived Crane of success in its tender offer in the free market to which it was entitled, in which case divestiture or separation of Air Brake may be required. Consummation of the transaction cannot be allowed to preclude any relief for violations of the securities laws.

We affirm the District Court’s dismissal of the claim as to the Air Brake proxy statement; we reverse

We do not suggest that such a drastic result as divestiture or separation must necessarily be reached in this case. Crane must establish that any relief sought is equitably required, considering the effect on other shareholders and the diligence with which Crane sought to prevent consummation of the merger and to obtain delay in its implementation pending expeditious review of the denial of injunc-tive relief by the trial court. See discussion in Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 947-948 (2 Cir. 1969).

II.

After denial of Crane’s petition for certiorari, 400 U.S. 822, 91 S.Ct. 41, 27 L.Ed.2d 50 (1970), battle was resumed in the district court, this time before Judge Mansfield. Crane’s disclosure of what the judge characterized as “multifarious claims for money damages,” 326 F.Supp. at 769, led Standard to move for an order “defining and limiting the issues.” The court granted this, 326 F. Supp. at 776-777, “to the extent of striking as a non-jury issue the assessment of any money damages other than such amounts as may be required to render equitable relief effective.” Judge Mansfield further directed that if Crane should move under F.R.Civ.P. 15 to amend its complaint to include other damages and such a motion should be granted, Standard’s time for a jury demand — on the issue of liability as well as on the question of damages — should run from service of the amended complaint.

Apparently nonplused by this, Crane asked this court to mandamus the district judge. The court denied the application without calling upon Standard to answer. Crane then asked the court to clarify the mandate. This also was denied without opinion. Although Standard would have us draw inferences of approval from these unexplained actions, we decline to speculate as to the reasons for the court’s denial of Crane’s appliea-tions. This may have rested on the restricted scope of mandamus, on a belief that the proper remedy was an appeal under § 1292(b), or on other bases not apparent to us.

When Judge Mansfield became a member of this court in May 1971, the action was assigned to Judge McLean. Crane moved before him for leave to amend its complaint in the fraud action to include a damage claim and for reconsideration of Judge Mansfield’s ruling that damages could be awarded only after a jury trial on the merits. Upon Judge McLean’s death, these motions were transferred to Judge Ward — along with a related matter we must now describe.

As stated in our opinion, 419 F.2d at 791, Crane, under threat of a divestiture action to be brought by Standard under the antitrust laws, sold, on June 13, 1968, all but 10,000 of the 740,311 shares of Standard convertible preferred stock it had received for its 32% interest in Air Brake, at a profit of several million dollars; later, it disposed of another 9,000 shares. Four days after the merger, Melvin Kritzler, an Air Brake stockholder, brought an action under § 16(b) against Air Brake, Standard, and' Crane. Kritzler’s complaint, filed prior to Crane’s sale of its Standard shares, alleged that Crane had demanded an appraisal of its holdings in Air Brake immediately before the merger, and that the demand constituted a “sale” of the Air Brake shares under § 16(b). A second Air Brake stockholder brought suit shortly thereafter, complaining that Crane had violated § 16(b) by purchasing Air Brake shares and then exchanging them for Standard shares after the merger. He claimed that Crane also violated § 16(b) by selling the Standard shares less than six months after it had received them in the merger exchange. A third complaint was then filed, this time by a Standard stockholder, suing derivatively on yet another theory: that Crane’s sale of Standard shares within six months of its purchase of Air Brake shares constituted a § 16(b) violation. Finally, Standard instituted its own § 16 (b) action. It alleged generally that Crane was liable for the short-swing profits it had made on the entire sequence of transactions. Standard made no jury demand.

In response, Crane filed a third-party complaint, an answer in the Standard suit, and a motion to consolidate three of the § 16(b) actions against it. The third-party complaint, brought against the directors of Air Brake, alleged that they had conspired to expose Crane to possible § 16(b) liability, and that judgment should be granted against them for any liability that Crane should suffer under § 16(b). In its answer to Standard’s suit, Crane claimed that the merger exchange was neither a purchase nor a sale of securities under § 16(b), and that its sale of its shares of Standard under threat of antitrust action was similarly not a § 16(b) sale. Crane further alleged that the Air Brake and Standard directors had planned the merger to expose Crane to possible § 16(b) liability, and that Standard was therefore estopped to assert its § 16(b) claim.

Judge McLean dismissed the Standard stockholder’s suit and directed that the actions brought by the two Air Brake stockholders be consolidated with Standard’s suit and an amended complaint served. After Standard filed an amended complaint on behalf of all three plaintiffs, Crane answered much as it had originally, but added as a further defense and counterclaim that it had suffered more than $50 million in damages due to the same actions of Air Brake and Standard that Crane had alleged in the initial fraud action. Standard replied that this counterclaim was barred by Judge Ryan’s judgment in the fraud suit, which was then on appeal. After much procedural maneuvering, Crane filed another third-party complaint against the former Air Brake directors in late 1969, again asking indemnity from them should Crane be found liable on the § 16(b) claims. The third-party defendants answered, as had Standard, that Crane’s claim was barred by the judgment in the fraud action before Judge Ryan.

While all this was going on, there were pending before Judge Lasker motions by both Crane and Standard for summary judgment with respect only to the § 16(b) claim against Crane. Just prior to our decision in Abrams v. Occidental Petroleum Corp., 450 F.2d 157 (2 Cir. 1971), the judge denied Crane’s motion and granted Standard’s, 346 F. Supp. 1153 (S.D.N.Y.1971); after our decision he withdrew his opinion for further consideration but subsequently adhered to it in a supplemental opinion, 346 F.Supp. 1165 (1972). Apparently Crane has not yet sought to appeal. Very likely, because of the undetermined counterclaim, it could not do so without obtaining either a certificate under F.R.Civ.P. 54(b), which would expose it to execution unless it filed a large supersedeas bond, or leave to appeal under 28 U.S.C. § 1292(b), which might well be desirable in order to get this issue on its ■way to final determination.

Standard next moved to dismiss Crane’s counterclaim in the § 16(b) action. It argued that Crane should not be permitted to split its cause of action for the alleged pre-merger fraud into one suit for equitable relief and an unrelated counterclaim for monetary recovery. In an opinion dated July 6, 1973, Judge Ward denied Standard’s motion, holding that Crane had not split its cause of action because it could not have sued for damages prior to the consummation of the merger. He also ruled that Standard was entitled to a jury trial of Crane’s counterclaim both because of Kritzler’s jury demand on the § 16(b) claim (on which Judge Lasker had already granted Standard summary judgment against Crane), and because denial of a jury trial on the counterclaim would circumvent Judge Mansfield’s decision that if Crane wished damages in the fraud action, Standard was entitled to have all issues relitigated before a jury. By a further order of September 26, Judge Ward denied motions by Crane for leave to add to its counterclaim in the § 16(b) action an allegation that the merits had already been determined by this court’s judgment in the fraud action and for reconsideration of Judge Mansfield’s decision.

III.

The starting point for considering how to untie the knots in which this case has become entangled is this court’s decision of four years ago, from which we have quoted the most pertinent portions. With the greatest respect for our brother Mansfield, we cannot understand why a remand to the district court solely to determine the appropriate remedies for the violations found to have been established, which “may include damages, if any,” should not be read to mean precisely what it said, rather than construed to require an amendment of the complaint and relitigation of the merits to a jury before damages could be awarded. If resort to the context were required, it would strengthen rather than weaken the meaning that emerges so plainly from the words. One indication is the court’s reference to J. I. Case v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Citing Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940), the Borak Court approved a ruling by the Seventh Circuit, 317 F.2d 838, 849 (7 Cir. 1963), that, in a suit in equity to enjoin unlawful proxy solicitation under § 14(a) of the Securities Exchange Act with respect to a merger since consummated, a district court “has jurisdiction under Section 27 to award damages or such other retrospective relief to the plaintiff as the merits of the controversy may require,” and disapproved contrary intimations in Dann v. Studebaker-Packard Corp., 288 F.2d 201 (6 Cir. 1961). In Mills v. Electric Auto-Lite Co., 396 U.S. 375, 386-389, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), the Court reaffirmed the right of a district court to award damages where a merger had been consummated in the face of a pending equity suit alleging a misleading proxy solicitation. While that case was decided after the decision here, the language in the concluding portion of Judge Smith’s opinion presages Mr. Justice Harlan’s in Mills. The reference to damages was particularly meaningful because of the doubt expressed whether “such a drastic result as divestiture or separation must necessarily be reached in this case,” 419 F.2d at 804. Damages, in other words, were considered a less onerous equitable remedy against Standard than what the district court had power to decree. The statement that even as to money damages, “Crane must establish that these are equitably required,” indicates that the court was not thinking of a jury trial — something that no one had even suggested at that stage.

Apart from all this, there was no occasion for belaboring the point that damages could be awarded under the complaint in the fraud action. This court had held many years ago that when a district court has denied an injunction against a corporate transaction which was then consummated, an appellate court can direct the district court, on a finding of merit in plaintiff’s claims, to order the undoing of the transaction or, if it deems that course preferable, to award damages under a prayer for other and further relief. Subin v. Goldsmith, 224 F.2d 753, 761-762 (2 Cir.), cert, denied, 350 U.S. 883, 76 S.Ct. 136, 100 L.Ed. 779 (1955).

To our minds, this court’s mandate in the appeal from Judge Ryan’s decision is clear. Taking the largely undisputed facts concerning Standard’s conduct on April 19, 1968, the court drew conclusions, differing from Judge Ryan’s, that Standard had violated § 9(a)(2) and Rule 10b-5. It did not intend those conclusions, reached after full briefing and study of the record, to be subject to reexamination in the district court even if that court should decide that damages were an appropriate remedy. And it meant that decision and the determination of the amount of damages, if any, to be made, as all other decisions in this equity action had been, by a district judge. If we had any doubts on the subject, which we do not, the court’s enumeration of the considerations that would have to be weighed with respect to relief and its references to Borak and this court’s opinion in Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 947-948 (2 Cir. 1969), would entirely dispel them.

IV.

We could terminate at this point since it is fundamental that a district court must carry out the mandate of a court of appeals, even if the mandate was in error, Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492, 9 L.Ed. 1167 (1838); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 140, 60 S.Ct. 437, 84 L.Ed. 656 (1940); Briggs v. Pennsylvania R. R., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948); Munro v. Post, 102 F.2d 686, 688 (2 Cir. 1939). The remedy of the aggrieved party is to seek a modification of the mandate, which Standard has not expressly done. However, it is not in anyone’s interest for us to be this technical. Placing decision on that basis would simply produce another round of motions in a case already plagued with too many, and if the mandate were in error, it should be corrected now. We shall therefore proceed as if Standard had sought from us a modification of the mandate on the ground that if the mandate meant what it clearly did, it violated the principles concerning the right to jury trial laid down in Beacon Theatres, Inc. v. West-over, 359 U.S. 500, 79 S.Ct. 948, 3 L. Ed.2d 988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). In this section of the opinion we shall deal with Standard’s claim that it is entitled to a jury trial on the. merits if Crane is to have any monetary relief; in the next section we shall discuss the question, not specifically raised by Standard, whether it is entitled to a jury trial limited to the amount of any such relief.

On the first point, Standard’s error lies in confusing cases of two very different sorts: those where the question of the proper order for trying jury and non-jury issues arises before any trial has occurred, as in Beacon and Dairy Queen, or where an issue properly tria-ble to a jury has been tried by a judge over a party’s seasonable protest, as in Heyman v. Kline, 456 F.2d 123 (2 Cir.), cert, denied, 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88 (1972) ; and those where the action has been properly tried to a judge and damages enter the case only because defendant’s acts subsequent to the judgment require retrospective relief, possibly including damages, rather than the prospective relief initially sought.

It bears repeating that the fraud action was brought on May 6, 1968, and that apart from the general prayer “for such other and further relief as may be just and proper,” the complaint sought only prospective .injunctive relief. Issue was joined on May 8, 1968. No one suggests that within 10 days thereafter, either party could legitimately have served a jury demand under F.R.Civ.P. 38(b). Standard’s position is rather that by the time the trial commenced on May 21, it was fairly evident that the merger would be consummated and that this became increasingly likely as the trial progressed; hence, it argues, if Crane wished to be eligible to recover damages, it should have asked the judge to abort the trial and start all over again with a jury.

We see no reason for holding that Crane was required to do this. Consummation of the merger, prospective or actual, would not foreclose the availability of equitable relief. It would simply mean that such relief must be retrospective, as the Supreme Court had recognized in Borak and this court did in its previous opinion, 419 F.2d at 803-804. Neither would such consummation transform what had been a suit in equity into one at least partially at law simply because the chancellor might determine monetary relief to be a more appropriate remedy than a retrospective injunction. Beacon and Dairy Queen doubtless require courts to give more thought than previously to the permissible extent of equity “clean-up” jurisdiction, see 5 Moore, Federal Practice ¶ 38.19 [2] at 1726. Yet where the claims asserted and the remedies sought are wholly equitable, the prospect that later developments may render it appropriate to award monetary relief under a general prayer in substitution for or in addition to an injunction does not require a plaintiff to take such extraordinary action as Standard suggests, under pain of forfeiting any right to ask the chancellor to award damages if he deems these to be more appropriate relief than an injunction. Dairy Queen dealt with an initial claim for a money judgment, a claim “wholly legal in its nature however the complaint is construed,” 369 U. S. at 476-477, 82 S.Ct. at 899. The treble damage counterclaim in Beacon Theatres was even more clearly such.

Moreover, if the character of the suit had in fact so changed as to make it “legal” in nature, which we think it had not, the burden of demanding a jury trial should be on the party now complaining of the lack of one. Standard made no such demand and raised no issue on this score until after this court’s decision. We thus find no need to consider Crane’s further argument that it did not acquire standing to recover damages until after the trial was concluded and Standard’s response thereto.

With so much established, the Supreme Court decisions cut in a way opposite to that for which Standard argues. The very basis of Beacon Thea-tres was that the effect of a trial of the equitable claim “could be, as the Court of Appeals believed, ‘to limit the petitioner’s opportunity fully to try to a jury every issue which has a bearing upon its treble damages suit,’ for determination of the issue of clearances by the judge might ‘operate either by way of res judicata or collateral estoppel so as to conclude both parties with respect thereto at the subsequent trial of the treble damage claim.’ ” 359 U.S. at 504, 79 S.Ct. at 953. It was to avoid this pre-clusive effect that the Supreme Court directed initial trial of the legal counterclaim. Here the merits of the fraud action have been tried by a judge in equity, without objection or basis for one, and reviewed on appeal. This court’s determination in its opinion on appeal stands beyond challenge in the fraud action and precludes relitigation by the parties of all issues resolved there.

This point as to the true bearing of Beacon and Dairy Queen is forcefully made in an able note by Professor David L. Shapiro and Daniel R. Coquillette, The Fetish of Jury Trial in Civil Cases: A Comment on Rachal v. Hill, 85 Harv. L.Rev. 442, 445-48. The authors continue with a further discussion, id. at 448-55, which is highly pertinent here. The framers of the Seventh Amendment sought to preserve the right to a jury trial in civil cases as it had existed “at common law.” The authors cite abundant eighteenth century precedent, on both sides of the Atlantic, that a decree in equity was recognized as having preclusive effect in a subsequent action at law between the same parties. With the merger of law and equity effected by the Federal Rules of Civil Procedure, a judgment in a suit which had been properly brought and tried as a suit in equity must govern all future proceedings between parties to which collateral estoppel would normally apply.

The direction for a jury trial of Crane’s counterclaim in the § 16(b) action thus was error since this court’s judgment precludes Standard from controverting it on the merits. And, for reasons already indicated, there was no room for relitigation on the merits in the fraud action and no need for Crane to amend its complaint to enable it to recover damages if the court should con-elude it was equitably entitled to them,

y

At argument we raised the question whether, assuming that relitigation of the merits was precluded even with respect to damages, Standard should be accorded a jury trial on their amount, an issue as to which our prior decision plainly has no preclusive effect.

While neither side displayed any én-thusiasm for this idea, we would not wish to hold Standard’s counsel to a position taken in the course of an argument without opportunity for full consideration. However, we can readily understand why the prospect of a jury trial on damages alone would not be attractive to anyone. The reference in our previous opinion to damages as a possible remedy did not at all place Crane in a position equivalent to that of a defrauded seller or buyer who is clearly entitled to damages which usually can be readily calculated. As shown by Crane’s particulars, see note 6 supra, the task of calculating what damages Crane may have suffered by the one act of wrong-doing found to have been committed by Standard would demand prodigies of prophecy and measurement beyond the capacity of jurors and perhaps of a judge. While this court found “that the causation requirement is satisfied here to the extent of imposing liability upon Standard for the consequences of concealing from the public material information relevant to the market value of Air Brake stock,” 419 F.2d at 797, it did not determine what these consequences were. Certainly it is not to be merely assumed that but for Standard’s acts on April 19, 1968, Crane’s tender offer would have succeeded and the merger would have failed. Mr. Justice Harlan emphasized in Mills, supra, 396 U.S. 375 at 389, 90 S.Ct. 616 at 624, that in cases like this “damages should be recoverable only to the extent that they can be shown.” Quite conceivably a judge here might find the chain of causation so dubious and the task of determining damages so elusive as to lead him to decide that, except for some items that may be readily provable, he could not properly award anything save perhaps attorneys’ fees, see Mills, supra, 396 U.S. at 389-397, 90 S.Ct. 616. Lurking in the background are the issue of Crane’s § 16(b) liability, still unresolved on appeal, and the anomaly seemingly inherent in a reduction of the merged corporation’s recovery under that section because of wrong-doing by one of its components toward the party charged with a § 16(b) violation. It would be hard to think of tasks less appropriate for performance by a jury than the determination of the amount of damages, if any, in a case like this.

These considerations, of course, would not be decisive if Standard is entitled to have the issue of damages tried to a jury as of right and wished to have that issue so determined, although they may cast doubt on whether the Seventh Amendment or the Rules of Civil Procedure should be construed to demand such a result. We do not read Beacon Thea-tres or Dairy Queen to require this. Fundamental to both decisions, as we have indicated, was the fact that the claim which the Court insisted be tried first to a jury was a claim for money to which the party seeking a jury trial, if correct in its legal position, was absolutely entitled (as in Beacon) or to which it had an absolute defense (as in Dairy Queen). Although the complaint in Dairy Queen had cast the money claims “in terms of an ‘accounting,’ rather than in terms of an action for ‘debt’ or ‘damages,’ ” the Court held that “the constitutional right to trial by jury cannot be made to depend upon the choice of words used in the pleadings.” 369 U.S. at 477-478, 82 S.Ct. at 900. Before reaching its decision, the Court satisfied itself that the request for an accounting posed no issues not readily determinable by a jury. 369 U.S. at 478-479, 82 S.Ct. 894, 900.

Much more important than the formidable difficulties in fixing damages in this case, to which we have alluded, is that the question whether to award any at all rests in a discretion which only the chancellor can exercise. Judge Smith made this evident when he concluded the previous opinion by saying, 419 F.2d at 804, that “Crane must establish that any relief sought is equitably required, considering the effect on other shareholders and the diligence with which Crane sought to prevent consummation of the merger and to obtain delay in its implementation pending expeditious review of the denial of injunctive relief by the trial court.” At the argument before us Standard’s counsel referred expressly to Crane’s failure to seek a stay of Judge Ryan’s denial of an injunction, which, if granted would have permitted any relief to be prospective only. Such a factor goes to the equity of now affording Crane retrospective relief, whether in-junctive or monetary; decision of that contention calls for the discretion of the chancellor. Similarly, while Standard is precluded by our previous opinion from relitigating its violations, it remains free to argue both the questions of their consequences, discussed above, and the degree of its malfeasance as bearing on the extent of the relief to be accorded. We do not believe that in Beacon Thea-tres or Dairy Queen the Court had any intention of retracting or diminishing the force of Mr. Justice Douglas’ classic remark in Hecht Co. v. Bowles, supra, 321 U.S. at 329, 64 S.Ct. at 592, concerning “the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case” by requiring a judge to relinquish to a jury the shaping of relief in an action that was properly begun and tried solely as a suit in equity for injunctive relief simply because subsequent events may have put a whiff of money in the air.

We therefore direct the district court to get on with the task which the concluding paragraph of our earlier opinion directed it to perform. Perhaps a good first step would be to attempt to arrange for appellate consideration of Judge Lasker’s grant of summary judgment against Crane on the § 16(b) claim, unless Crane accepts this as correct, which we gather it does not. We would think it more appropriate that the remedy to be afforded Crane for the violations of § 9(a)(2) and Rule 10b-5 by Standard which were found in our earlier opinion should be prescribed in the fraud action (the complaint in which we hold not to require amendment) rather than on Crane’s counterclaim in the action under § 16(b). The district court could then consider Crane’s liability under § 16(b), if any, in determining the proper remedy for Standard’s violations. The orders of Judges Mansfield and Ward are therefore reversed to the extent that they are inconsistent with this opinion. As stated at the outset, Standard’s petition for mandamus is dismissed. Crane may recover its costs.

      . The delay has been due in considerable part to the promotion to this court of Judge Mansfield, who wrote the first procedural opinion on remand, Crane Co. v. American Standard, Inc., 326 F.Supp. 766 (S.D.N.Y. 1971), and the untimely death of Judge McLean.

      . In the light of hindsight, it might have been wiser to refer both the petition for mandamus and the motion for leave to appeal to the panel that had decided Crane Co. v. Westinghouse Air Brake Co., supra. This was not suggested to us.

      . All the transactions here at issue took place prior to enactment of the Williams Act, 82 Stat. 454 (1968), adding §§ 13(d) (3) and 14(d), (e) and (f) to the Securities Exchange Act.

      . We are told that Standard made its purchases on April 19 because that was the last day on which a purchase of Air Brake stock would carry the right to vote at the May 16 meeting if done on a “cash” basis rather than to disrupt Crane’s tender offer, which Standard had reason to believe would be, and was, extended. The former point was strongly argued to but rejected by this court on the first appeal, 419 F.2d at 795.

      . Judge Ityan had recused himself on Crane’s request. Crane had alleged that his dismissal of the complaint necessarily involved a judgment concerning the innocence of Standard’s conduct that would make it difficult for him to avoid the appearance of prejudice in presiding over the remand. Standard argues that Crane’s request shows that it recognized that factual issues would have to be determined if damages were sought. But the request can be interpreted as indicating no more than that a judge who had thought there was no basis for any remedy at all was not the best suited to determine what the remedy should be. In any event, our concern is with what this court meant rather than with what Crane thought.

      . These were:
      (1) the difference in value between Crane’s 32% block of Air Brake stock, including the value of control, and the Standard shares which were received in exchange therefor after the merger of Air Brake into Standard, (2) similar damages with respect to Air Brake stock which Crane was prevented from acquiring as a result of Standard’s alleged manipulation and deceit, (3) the value to Crane of control of Air Brake, (4) the loss which Crane allegedly suffered from the forced sale of its Air Brake stock, for antitrust reasons, subsequent to the merger, and (5) punitive damages.
      326 F.Supp. at 769-770.

      . Crane was in direct competition with Standard, although it had not been with Air Brake.

      . All three stockholders alleged — apparently without basis — that a request that Air Brake or Standard directors bring suit would be futile and that the plaintiffs should therefore be excused from the requirement in § 16(b) that the stockholder request the issuer to bring suit and then wait 60 days before initiating his own action.

      . Our decision was later affirmed sub nom. Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973).

      . This argument runs as follows: Crane was bound to assert all its claims concerning the April 19, 1968 manipulations in a single action or be barred by the doctrine of merger, a branch of the principle of res judicata. In the fraud action before Judge Ryan, Crane sought no damages. Hence, it cannot recover them now, either on the reversal and remand of Judge Ryan’s dismissal, despite the court’s explicit declaration to the contrary, or in a counterclaim to Standard’s action under § 16(b). Although there are many answers to this ingenious attempt to snatch victory from the jaws of defeat, a sufficient one is that, in contrast to issue preclusion (collateral estoppel), the rule of merger applies only to final judgments. See Restatement of Judgments 2d, § 41 (Tent. Draft No. 1, March 28, 1973). There has yet been no final judgment in the fraud action, and a claim for damages there can be pursued either without amendment of the complaint, as we hold, or by an amendment of it. Crane’s failure to submit proof of damages at a time when it was seeking to avert them by enjoining an event does not prevent an appellate court, on a reversal, from allowing such proof to be submitted after the event has occurred, 28 U.S.C. § 2106.

      . Judge Mansfield found significance in the lack of discussion of damages in the briefs before this court. Crane’s brief concluded' on the note that power was not limited to prospective injunctive relief but included “the power to award whatever retrospective relief may be appropriate despite consummation of the merger,” citing Borah and a lower court decision in Mills. It argued that, since the trial court had dismissed the complaint, it had never considered what alternative relief “such as rescission or damages would be appropriate after consummation of the merger.” Standard’s brief was naturally devoted to defending its position on the merits. Crane’s reply brief emphasized the need for an “effective” and “appropriate” retrospective remedy “including without limitation, damages to Crane.” These extracts, together with this court’s own language, are ample to show that the possibility of damages, if Crane could show itself equitably entitled to them, was in everyone’s mind.

      . Judge Mansfield expressed doubt, 326 F. Supp. at 775, whether if Crane’s action had called for a jury trial, “the Court of Appeals would hold that summary judgment in favor of Crane is warranted or that a court is entitled to substitute its inferences from the cold printed record for the findings of a jury made after observing the witnesses and appraising their credibility.” We are not required to speculate about this. Here the action solely in equity had been tried to a judge, without any jury demand, and this court was proceeding in accordance with the principle, recognized in Stevenot v. Norberg, 210 F.2d 615, 619 (9 Cir. 1954), and other cases, see 5A Moore, Federal Practice U 52.03 [2], that “When a [judge’s] finding is essentially one dealing with the effect of certain transactions or events, ratlier than a finding which resolves disputed facts, an appellate court is not bound by the rule that findings shall not be set aside, unless clearly erroneous, but is free to draw its own conclusions.”

      . Judge Mansfield was strongly influenced by this argument. He was confident, as we are, “that the Court of Appeals would not want us to award damages which we are prohibited by the Constitution from assessing without first granting to Standard a jury trial,” 326 F.Supp. at 771. Our disagreement with our esteemed colleague lies in our belief that there is no such prohibition on the facts here.

      . Judge Mansfield intimated that something of the sort was indicated by the Advisory Committee Note to F.R.Civ.P. 65(a)(2), see 326 F.Supp. at 772. We disagree.

      . Radial v. Hill, 435 F.2d 59 (5 Cir. 1970), cert, denied, 403 U.S. 904, 91 S.Ct. 2203, 29 L.Ed.2d 680 (1971), relied on by Standard, held that defendants in a private damages action under the Securities Acts were not collaterally estopped from relitigating liability by an earlier finding that they had violated the law in an SEC injunction suit, since such a disposition would deprive them of trial by jury. The case is distinguishable on the facts since it dealt with two separate proceedings with different plaintiffs. However, along with Professor Shapiro and Mr. Coquillette, we are not at all sure that Rachal was correctly decided. As indicated in the text, equity decrees in the eighteenth century had preclusive effect in actions at law, and the erosion of the mutuality requirement for collateral estoppel, recognized in Rachal, 435 F.2d at 61-63, and later evidenced by the Supreme Court’s decision in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), arguably should apply to them to the same extent as to judgments at law. See 85 Harv.L.Rev. at 454-55.

      . Needless to say, we are not passing on the propriety of granting the plaintiff attorneys’ fees in this case; this question, in the first instance, is for the district court.

      . This was made evident by the reference to the portion of the opinion in Electronic Specialty Co. v. International Controls Corp., supra, 409 F.2d 937 at 947, where, after quoting from Hecht Co. v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944), we cited “the admonition of an equally exalted authority whose ‘object all sublime’ was to ‘let the punishment fit the crime.’ ”