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MENDELL IN BEHALF OF VIACOM, INC. v. GOLLUST

Nos. 468, 562, Dockets 89-7068, 89-7686.

909 F.2d 724 (1990)

Ira L. MENDELL, in Behalf of VIACOM, INC. and, alternatively, Viacom International, Inc., Plaintiffs-Appellants, v. Keith R. GOLLUST, Paul E. Tierney, Jr., Augustus K. Oliver, Gollust Tierney and Oliver, Gollust & Tierney, Inc., Coniston Partners, Coniston Institutional Investors, Baker Street Partners, WJB Associates, Helston Investment, Inc., Viacom Inc., and Viacom International, Inc., Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided July 25, 1990.

Attorney(s) appearing for the Case

Irving Malchman (Kaufman Malchman Kaufmann & Kirby, New York City, of counsel), for plaintiffs-appellants.

Edwin B. Mishkin (James W. Pharo, Michael S. Sommer, Cleary, Gottlieb, Steen & Hamilton, New York City, of counsel), for defendants-appellees other than nominal parties Viacom Inc., and Viacom Intern., Inc.

S.E.C. (Daniel L. Goelzer, Gen. Counsel, Jacob H. Stillman, Associate Gen. Counsel, Thomas L. Riesenberg, Asst. Gen. Counsel, Leslie E. Smith, Atty., and Paul Gonson, Sol., Washington, D.C., of counsel), filed a brief for the S.E.C., amicus curiae.

Before OAKES, Chief Judge, CARDAMONE, Circuit Judge, and POLLACK, District Judge.

CARDAMONE, Circuit Judge:

This appeal deals with a suit brought to recover short-swing profits against insiders which was dismissed in the district court. It is clear from Supreme Court precedent that liability for short-swing trading will not arise unless the securities transactions at issue fall within the literal language of the statute that prohibits over-reaching by insiders. Here plaintiff's standing to bring suit against insiders, rather than such individuals...

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