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FALCO v. DONNER FOUNDATION

No. 26, Docket 22756.

208 F.2d 600 (1953)

FALCO et al. v. DONNER FOUNDATION, Inc., et al.

United States Court of Appeals Second Circuit.

Decided December 8, 1953.

Attorney(s) appearing for the Case

Morris J. Levy, New York City (William Rosenfeld, New York City, on the brief), for plaintiff-appellant-appellee.

Alfred Berman, New York City (Guggenheimer & Untermyer, Abraham Shamos, Norman Hammer, and Leon Tykulsker, New York City, on the brief), for Donner Foundation, Inc., defendant-appellee-appellant.

Dudley B. Tenney, New York City, for Pittsburgh Steel Co., defendant-appellee.

William H. Timbers, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Edward H. Hickey and Oliver C. Biddle, Attys., Dept. of Justice, and J. Edward Lumbard, Jr., U. S. Atty., New York City, on the brief), for United States, intervenor-appellee.

William H. Timbers, Gen. Counsel, and Myer Feldman, Sp. Counsel, Washington, D. C., for Securities and Exchange Commission as amicus curiæ.

Before CHASE, Chief Judge, CLARK, Circuit Judge, and BRENNAN, District Judge.

CLARK, Circuit Judge.

These appeals arise from an action by Renzo Falco, stockholder, to recover alleged insider short-swing profits under § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b), realized from purchase and sale of securities of the nominal defendant Pittsburgh Steel Company by defendant Donner Foundation, Inc.

On January 13, 1951, the beginning of the period covered by the complaint, Donner owned more than 10 per cent...

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