Opinion
November 22, 1950.
Roger S. Foster, General Counsel, Washington, D.C., William D. Moran, New York City, and Robert B. Healey, Washington, D.C., for plaintiff.
Sidney B. Josephson, New York City, (I. Saul Fleischman, New York City, of counsel), for defendants.
Plaintiff moves under Rule 56, Fed. Rules Civ.Proc., 28 U.S.C.A., after answer, for summary judgment in this action brought under Section 22(a) of the Securities Act of 1933, 15 U.S.C.A. § 77v(a), for injunctive relief to restrain defendants from further and continued violations of Section 5(a)(1) and (2) of the Securities Act of 1933, 15 U.S.C.A. § 77e(a)(1) and (2).
Defendants are now so restrained by a temporary restraining order, extended by stipulation, signed by both parties, "in full force and effect until the action herein can be heard upon its merits." There is implicit in this stipulation a mutual recognition that a trial is necessary.
Whether a final judgment enjoining the defendants should be granted will depend on plaintiff's ability to sustain by proof the allegations of paragraph "5" of the amended complaint, alleging that "the defendants will, unless enjoined, continue to engage in the acts and practices set forth in the complaint." The answer denies these allegations.
A genuine triable issue of fact is, therefore, presented. Securities and Exchange Commission v. Torr, 2 Cir., 1937, 87 F.2d 446.
Motion is denied.