After reading the various papers filed with the Court, I believe I now have in focus the presently relevant facts in a most complicated situation. However, I believe no purpose would now be served by narrating facts beyond those necessary to this decision. I particularly desire to avoid the expression of any unconscious or conscious evaluation of facts beyond the necessities of the present application.
Plaintiffs ultimately seek a declaratory judgment that they own the stock of two Delaware corporations, defendants herein. The corporation with which this interim application is concerned is the defendant, North River Securities Corporation. It is conceded that one of the matters for decision after trial will be whether the plaintiffs, Tom Bata and the executors of his mother's estate, or the defendant Jan Bata, owns the North River shares. It is not now necessary to relate the theories upon which the conflicting claims are made.
The principal asset of North River consists of bearer certificates representing 890 shares of stock of Leader A. G., a Swiss corporation. Leader controls all of the operating companies in the Bata enterprise with some minor exceptions. Plaintiffs recently applied to this Court for a receiver for North River on the ground, inter alia, that the conduct of North River's officials in permitting the Leader bearer certificates to remain in Switzerland threatened to nullify any decision by this Court as to the ownership of the North River stock; it being obvious that the real value of North River stock is in North River's ownership of the Leader shares. Plaintiffs sought a receiver so that such receiver might get possession of the Leader certificates. This Court denied the receivership on the condition that the Leader certificates be brought back from Switzerland and deposited with the clerk of this Court. This condition was promptly met by the officials of North River and the Leader certificates are now subject to this Court's control.
It appears, however, that some time during World War II an attempt was made by the Swiss mandatories of Leader
The attempted transfer of the Leader shares from North River to B. S. F. was made without either B. S. F. or Leader ever getting possession of the bearer Leader certificates now in this Court's possession. Both the bearer certificates for 890 shares of Leader held by North River and 890 shares of the registered certificates of Leader held by B. S. F. admittedly represent the identical interest in Leader.
It is an open question as to which set would be recognized as valid by the Swiss Court. But that is not an issue in this case. Those controlling North River, B. S. F. and Leader concede that they hold the certificates for the party — as between Jan versus Tom and his mother's estate — who is determined to be the rightful owner of what was heretofore the property of Thomas Bata, deceased; subject to Swiss supervisory laws of course.
Thus it appears that this Court has, as an intermediate matter and at plaintiffs' instance, caused one of the principal assets (Leader shares) of one of the two Delaware corporations whose stock ownership is involved in this lawsuit to be deposited so as to be available to the North River Corporation when the ownership of its stock is ultimately determined as between Jan and the plaintiffs.
Jan now seeks certain interim relief and this is the decision thereon. The nature of such relief can best be shown by quoting the prayers in his application:
Jan's present application seeks to make as certain as possible that the determination as to the ownership of the North River shares will not only give the victor control of the Leader bearer certificates but will also indirectly give such victor control of the registered certificates now held by B. S. F. The reason for the desire to get control of the interest in both sets of certificates under this Court's power is to see that the victory is not an empty one. Otherwise the victor here may have to completely relitigate the ownership issue when North River finally takes the bearer certificates to Switzerland.
Now to the prayers in the application. Initially, I see no reason to appoint a receiver to hold any of the Leader shares represented by the bearer certificates now on deposit with this Court.
Defendant next prays for the appointment of a receiver by this Court to transfer the B. S. F. held Leader certificates to this Court. Basically, this Court caused the principal asset of North River (890 shares of Leader), one of two Delaware corporations whose stock ownership is here involved, to be deposited so as to be available to the corporation when the ownership of its stock is determined. The Leader shares on deposit may or may not have been superseded by the registered shares of Leader held by B. S. F. But neither B. S. F. nor the Leader certificates registered in its name are under this
The next prayer to be considered raises the question as to whether this Court will appoint a receiver and direct the interested parties before this Court to convey to him their interest in 890 shares of the Leader stock now registered in the name of B. S. F. and representing the same interest as the bearer certificates. The interest so conveyed to the receiver would presumably be held and then conveyed by the receiver to North River when the ownership of the North River stock is ultimately determined by this Court.
Admittedly all parties having any claim to the North River shares are before this Court. Furthermore, the stock ownership determination is really sought to enable the victor to gain the ownership and control of its principal asset — 890 shares of Leader stock. That was the reason plaintiffs sought a receiver for the stock. The duplication of the same Leader interest is evidenced by the certificates held by B. S. F. As heretofore stated, this Court cannot now decide which set of certificates is valid. But it is conceded that, subject to Swiss law, court orders and B. S. F.'s charter, B. S. F. is subject to the orders of its mandatories, Jucker and Berger, who concede that they are in turn subject to the direction of one or the other of the two sets of litigants who are here contesting the ownership of the North River stock. Viewing the substance of the North River controversy here being litigated, it is evident that I am trying the issue of the true owner of the interest in Leader. Therefore, why should not those parties who instituted this action with that ultimate objective in view be willing to join with Jan in taking such action as is necessary to render this Court's determination of North River's ownership effective as to its principal asset without rendering the result possibly subject to a second trial concerning it? Unless this is done the loser here may be able to require the victor to re-try in some other forum the whole issue of ownership of whichever set is valid. This seems to the Court to be a particularly good example of the type of situation where the flexible remedies of a Court of Equity may be most appropriately applied. Moreover, where all the parties in interest are now before this Court, the proper administration of justice calls for only one fair trial on what amounts to the question of the ownership of the 890 Leader shares.
A stay of the trial will be denied on the condition that plaintiffs comply with the procedure hereafter outlined. I will appoint a receiver to receive and hold such conveyances and documents, representing the interest of the parties, if any, in 890 shares of Leader held by B. S. F., as may be necessary to place him in a position to convey that interest to North River or some other designee when the ownership of the North River stock is finally determined. Until the merits of this case are resolved there will be no interference with the operation of the Bata enterprise.
Before the entry of the order hereon the Court will hear counsel, if they desire, particularly the attorney for Jucker and Berger, as to the appropriate steps to be taken to effectuate this decision. If there are any other factors to be considered, I will be happy to hear about them. It goes without saying that I believe my decision can be carried out without offending the Swiss Courts. I say this because I do not understand that the pending Swiss action between the parties, now on appeal, calls for such a determination of the ownership of the B. S. F. held Leader certificates as would preclude a trial in Switzerland to establish the validity of the bearer certificates.
I am not now called upon to decide what other action can be taken if any of the parties should be unwilling or unable to comply with the order to be entered on this decision.
Order on notice.