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BLAU v. LAMB

No. 251, Docket 27238.

314 F.2d 618 (1963)

Isadore BLAU, a stockholder of Air-Way Industries, Inc., suing on behalf of himself and all other stockholders similarly situated and on behalf of and in the right of Air-Way Industries, Inc., Plaintiff-Appellant, v. Edward LAMB, Frank C. Oswald, Edward Lamb Enterprises, Inc., and Air-Way Industries, Inc., Defendants-Appellees.

United States Court of Appeals Second Circuit.

Decided March 8, 1963.

Attorney(s) appearing for the Case

Morris J. Levy, New York City, for plaintiff-appellant.

Jerome M. Stember, of Stember & Dershowitz, New York City (J. Eugene Farber, Toledo, Ohio, on the brief for defendant-appellee Air-Way Industries, Inc.), for defendants-appellees.

Peter A. Dammann, Gen. Counsel, David Ferber, Associate Gen. Counsel, and John A. Dudley, Atty., Securities and Exchange Commission, Washington, D. C., for Securities and Exchange Commission amicus curiae.

Before CLARK, WATERMAN, and KAUFMAN, Circuit Judges.

CLARK, Circuit Judge.

The district court summarily dismissed the plaintiff's action to recover "short swing" profits under the Securities Exchange Act of 1934, § 16(b), 15 U.S.C. § 78p(b), for the benefit of Air-Way Industries, Inc., because it held him not to be the bona fide owner of securities of the corporation at the time the action was brought, and hence not the real party in interest. It was not disputed that some time before the action was instituted...

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