Applying the same tests and objective standard, plaintiff's motive in bringing the action would not affect the result. See Pellegrino v. Nesbit, supra, 203 F.2d at page 466; Magida on Behalf of Vulcan Detinning Co. v. Continental Can Co., supra, 12 F.R.D. at page 78; Benisch v. Cameron, D.C.S.D.N.Y.1948, 81 F.Supp. 882, at page 885; Grossman v. Young, D.C.S.D.N.Y.1947, 72 F.Supp 375, at page 380.
Once defendant purchased the stock and realized a profit, a cause of action arose;
a right of action by the corporation
existed and the limitation period began to run.
Since plaintiff's action was commenced more than two years thereafter,
ordinarily defendant's motion to dismiss should be granted.
Plaintiff and the Commission
contend that here too an objective standard should determine the timeliness of the action. Since defendant violated a statutory policy against insider trading and a statutory duty of filing, the limitation period should not begin to run until the § 16(a) report was filed, regardless of whether the delay was caused by inadvertence or wilful misconduct. See Fistel v. Christman, D.C.W.D.Pa., 13 F.R.D. 245, at page 248; contra, where the report was filed within the ten day period.
Pointing to the purpose of the Act, § 2 (see 59 Yale L.Jnl. 511); the high standard of fiduciary conduct required;
the legislative history;
the complementary nature of (a) and (b);
the specific purpose of § 16; the short limitation period, understandable only in context with a duty to make prompt disclosure,
they argue that the limitation is not an integral part of the right of action; that such construction provides an effective sanction against tardy § 16(a) reports, and that a contrary holding would frustrate the will of Congress and defeat a worthy statutory purpose.
Second, that defendant's conduct amounted to fraud and concealment which tolled the statute; even though an insider tells the officers and directors about his stock transactions, delay in reporting, whether wilful or inadvertent, should prevent such knowledge from being imputed to the corporation.
Third, estoppel against pleading such a defense; since defendant could have started the period running, plaintiff and the shareholders should not be prejudiced by his failure to do so. A defendant should not profit from his own wrong. Bigelow v. R. K. O. Radio Pictures, Inc., 1946, 327 U.S. 251, at pages 264, 265, 66 S. Ct. 574, 90 L. Ed. 652.
If plaintiff's theory as to statutory construction were adopted and an objective standard applied, regardless of the cause of defendant's delay or plaintiff's knowledge, plaintiff's motion should be granted. But § 16(b) created a new cause of action
and contains within itself a statute of limitations.
'* * * the limitation imposed becomes an integral part of the right of action created by the statute and so limits it that an aggrieved person cannot maintain his suit after the time fixed by the statute has expired.' Pennsylvania Company for Insurance, etc., v. Deckert, 3 Cir., 1941, 123 F.2d 979, at page 985.
'* * * such statutes cannot be tolled, after the manner of statutes of limitation, even for fraud or concealment by the defendant which prevent the plaintiff from bringing the action within time.' Damiano v. Pennsylvania R. Co., 3 Cir., 1947, 161 F.2d 534, at page 535, certiorari denied 332 U.S. 762, 68 S. Ct. 65, 92 L. Ed. 348; Carpenter v. Erie R. Co., 3 Cir., 1942, 132 F.2d 362; and see United States v. Borin, 5 Cir., 1954, 209 F.2d 145, at pages 147, 148.
Although there is respectable authority to the contrary
we shall follow the teachings of the Court of Appeals for this Circuit.
Bree v. Holbech, 2 Douglas 654, 656, Dictum of Lord Mansfield; Sherwood v. Sutton, 1828, 21 Fed.Cas.No.12782, p. 1303, 5 Mason 143; Bailey v. Glover, 1874, 21 Wall. 342, 88 U.S. 342, 348, 22 L. Ed. 636; Exploration Co., Ltd. v. United States, 247 U.S. 435, 38 S. Ct. 571, 62 L. Ed. 1200; Grossman v. Young, D.C.S.D.N.Y., 72 F.Supp. 375; Holmberg v. Armbrecht, 327 U.S. 392, at page 397, 66 S. Ct. 582, 90 L. Ed. 743; Scarborough v. Atlantic Coast Line R. Co., 4 Cir., 1949, 178 F.2d 253, 15 A.L.R.2d 491, certiorari denied 339 U.S. 919, 70 S. Ct. 621, 94 L. Ed. 1343, Id., 4 Cir., 190 F.2d 935, at page 941; Toran v. N. Y., N. H. & H. R. Co., D.C.Mass., 108 F.Supp. 564; Fravel v. Pennsylvania R. Co., D.C.Md.1952, 104 F.Supp. 84, and see Note 15 A.L.R.2d 500.
As to statutes of limitations generally, see Mr. Justice Stone in Guaranty Trust Co. of New York v. United States, 1938, 304 U.S. 126, at page 136, 58 S. Ct. 785, at page 790, 82 L. Ed. 1224, 'The statute of limitations is a statute of repose * * * regarded by this Court * * * as a meritorious defense, in itself serving a public interest.' Mr. Justice Sutherland in United States v. Oregon Lumber Co. 1922, 260 U.S. 290, at page 299, 43 S. Ct. 100, at page 103, 67 L. Ed. 261, '* * * not a technical defense but substantial and meritorious. The great weight of modern authority is to this effect.' Mr. Justice McLean in McCluny v. Silliman, 1830, 3 Pet. 270, 28 U.S. 270, 277, 7 L. Ed. 676, 'The courts do not now, unless compelled by the force of former decisions, give a strained construction, to evade the effect of those statutes * * *.' And see Mr. Justice Story in Bell v. Morrison, 1828, 1 Pet. 351, 26 U.S. 351, at page 360, 7 L. Ed. 174 '* * * it has often been a matter of regret, * * * that, in the construction of the statute of limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute; that instead of being viewed in an unfavorable light, * * * it had received such support as would have made it what it was intended to be, emphatically, a statute of repose.' And see Mr. Justice Bradley in Amy v. City of Watertown, supra, 130 U.S. 320, at page 324, 9 S. Ct. 537, at page 538, 32 L. Ed. 953, speaking of the power to make exceptions, 'but the cases in which it applies are very limited in character, and are to be admitted with great caution; otherwise the court would make the law instead of administering it. The general rule is that * * * the act must prevail, and no reasons based on apparent inconvenience or hardship can justify a departure from it.'
Finally Mr. Justice Jackson in Chase Securities Co. v. Donaldson, 1945, 325 U.S. 304, at pages 313-314, 65 S. Ct. 1137, at page 1142, 89 L. Ed. 1628, statutes of limitations 'always have vexed the philosophical mind for it is difficult to fit them into a completely logical and symetrical system of law. There has been controversy as to their effect. * * *' They '* * * find their justification in necessity and convenience rather than in logic * * * represent expedients, rather than principles * * * are by definition arbitrary, and their operation does not discriminate between the just and unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. * * * the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.'
'In the imposition of penalties * * * Congress has a wide discretion. Sanctions may be of various types.' Electric Bond & Share Co. v. S. E. C., 303 U.S. 419, at page 442, 58 S. Ct. 678, 686, 82 L. Ed. 936, 115 A.L.R. 105. While § 16(a) does not specifically provide civil liability in damages for failure to comply with its commands, § 28(a) of the Act, 15 U.S.C.A. § 78bb(a) preserves such right. A proper plaintiff may under certain circumstances recover.
Compliance with § 16(a) may also be enforced under § 21(e), 15 U.S.C.A. § 78u(e); a wilful violation punished under § 32(a), 15 U.S.C.A. § 78ff(a).
When Congress wished to fix a special sanction for failure to file, it spelled out the specific liability.
When it desired to have the limitation period postponed, it specifically said so.
We are thus confronted with the problem suggested but not solved in Rosenberg v. Hano, 3 Cir., 1941, 121 F.2d 818, at page 821.
In view of the foregoing, considering the plain and unambiguous language of § 16(b), comparing it with §§ 9(e) and 18(c), it appears that Congress intended a different situation to prevail under 16(b). Based upon a fair interpretation of the section we conclude that the words mean exactly what they say. 'Whatever the motive, the language used clearly expresses the legislative intention and admits of no doubt as to its meaning. This being so, it is only the province of the courts to enforce the statute in accordance with its terms.' Texas Portland Cement Co. v. McCord, 1914, 233 U.S. 157, at page 163, 34 S. Ct. 550, 553, 58 L. Ed. 893. See United States v. Lexington Mill Co., 232 U.S. 399, 409-410, 34 S. Ct. 337, 58 L. Ed. 658 and Securities and Exchange Comm. v. C. M. Joiner Corp., 1943, 320 U.S. 344, at pages 350, 355, 64 S. Ct. 120, at pages 123, 125, 88 L. Ed. 88.
'We need not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.' Mr. Justice Cardozo, 1933, in Anderson v. Wilson, 289 U.S. 20, 27, 53 S. Ct. 417, 420, 77 L. Ed. 1004. And see Mr. Justice Brandeis in Iselin v. United States, 1926, 270 U.S. 245, at page 251, 46 S. Ct. 248, at page 250, 70 L. Ed. 566, 'What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, * * *. To supply omissions transcends the judicial function.'
Running through plaintiff's argument is the thread that defendant's conduct effectively prevented suit; that the information provided by the 16(a) report '* * * is aimed at providing the information which must form the basis for any action * * * under * * * § 16. Failure to comply with 16(a) will necessarily hamper the enforcement of 16(b) * * *' See 95 U. of Pa.L.Rev. 474-475.
In addition to the personal knowledge of plaintiff's officers the corporation must be charged with knowledge of what appeared on its stock ledger and stock transfer books.
Notice to an officer in the line of his duty would in the absence of some contravening circumstances such as collusion be notice to the company. See Mr. Justice Holmes in Curtis v. Connly, 257 U.S. 260, at page 262, 264, 42 S. Ct. 100, 66 L. Ed. 222; White v. Federal Deposit Ins. Corp., 4 Cir., 1941, 122 F.2d 770, at page 776; Farmer v. Standeven, 10 Cir., 1938, 93 F.2d 959, at page 962; Cooper v. Hill, 8 Cir., 1899, 94 F. 582. The stockholders had the right to inspect them. Guthrie v. Harkness, 1905, 199 U.S. 148, at pages 153, 155, 26 S. Ct. 4, 50 L. Ed. 130; Shonts v. Hirliman, D.C.S.D.Cal., 28 F.Supp. 478, at page 486; 15 A.L.R.2d 90; Com. ex rel. Sellers v. Phoenix Iron Co., 105 Pa. 111, at page 116; Kuhbach v. Irving Cut Glass Co., 220 Pa. 427, at page 433, 69 A. 981, 20 L.R.A.,N.S., 185; Binns v. Copper Range Co., 335 Pa. 257, at page 265, 6 A.2d 895; 5 Fletchers Cyclopedia Corpns., Perm.Ed. § 2213 et seq.
Assuming arguendo that defendant's conduct amounted to 'fraud',
that a failure to file would ordinarily be considered 'concealment',
that the limitation was not a condition precedent to the right to sue and that fraud and concealment would toll the statute, the knowledge of plaintiff's president, herein unchallenged, was that of the corporation. Having such it was plaintiff's duty to bring suit within the statutory period.
Although estoppel need not present fraud in its full implications and intent to deceive is not required, even here the plaintiff must show reliance upon defendant's misleading conduct.
Plaintiff was obliged to aver
the circumstances as to discovery, when, what, how and why it was not made sooner. Wood v. Carpenter, 1879, 101 U.S. 135, at page 140, 25 L. Ed. 807; that it exercised due diligence in doing so. Felix v. Patrick, 1892, 145 U.S. 317, at pages 331-332, 12 S. Ct. 862, 36 L. Ed. 719; Ware v. Galveston City Co., 146 U.S. 102, at page 116, 13 S. Ct. 33, 36 L. Ed. 904; Fischmann v. Raytheon Mfg. Co., D.C.S.C.N.Y., 9 F.R.D. 707, at page 710; Shonts v. Hirliman, supra, 28 F.Supp. at pages 486, 487.
'It is fundamental, in the rule announced in Bailey v. Glover [21 Wall. 342, 22 L. Ed. 636], that there must not be negligence or laches * * * in coming to the knowledge of the fraud which is the foundation of his suit * * *. A rigid enforcement of that condition is essential to meet the object of the statute of limitations.' Avery v. Cleary, 1890, 132 U.S. 604, at page 609, 10 S. Ct. 220, at page 223, 33 L. Ed. 469, and see Rawlings v. Ray, 312 U.S. 96, at page 98, 61 S. Ct. 473, 85 L. Ed. 605; Foster v. Mansfield, C. & L. M. R. Co., 146 U.S. 88, 89, 13 S. Ct. 28, 36 L. Ed. 899; Johnston v. Standard Mining Co., 1893, 148 U.S. 360, 370, 13 S. Ct. 585, 37 L. Ed. 480. There can be no concealment which will prevent the running of the statute of limitations when the cause of action is known. Turtzo v. Boyer, 1952, 370 Pa. 526, at pages 529, 530, 88 A.2d 884; Phillips Petroleum Co. v. Johnson, 1946, 5 Cir., 155 F.2d 185, at page 191, certiorari denied 1946, 329 U.S. 730, 67 S. Ct. 87, 91 L. Ed. 632; Coddington v R. Co., 1880, 103 U.S. 409, 26 L. Ed. 400. A cause of action cannot be said to be concealed from one who has personal knowledge of the facts which created it. See Norris v. Haggin, 1890, 136 U.S. 386, 10 S. Ct. 942, 34 L. Ed. 424.
We are fully aware that equitable powers have been invoked to the end that fraud will not prevail, that substance will not give way to form, that technical considerations will not prevent substantial justice from being done, Pepper v. Litton, supra, 308 U.S., at pages 304, 305, 60 S. Ct. at page 244, but '* * * when the lawmaking power speaks upon a particular subject, over which it has constitutional power to legislate, public policy in such a case is what the statute enacts.' United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, at page 340, 17 S. Ct. 540, at page 559, 41 L. Ed. 1007. See and cf. American United Mut. Life Insurance Co. v. City of Avon Park, 311 U.S. 138, at page 145, 61 S. Ct. 157, 85 L. Ed. 91.
Ordinarily whether or not plaintiff's president had the knowledge attributed to him, and whether or not proper diligence had been exercised would be a question of fact to be determined by a jury. 123 A.L.R. 346, at page 367; Schillner v. H. Vaughn Clarke & Co. 2 Cir., 1943, 134 F.2d 875, at page 878.
Here there has been no denial of such knowledge or any charge of collusion between defendant and the officers of plaintiff corporation. See Truncale v. Blumberg, D.C.S.D.N.Y., 83 F.Supp. 628. Defendant's motion to dismiss in the present state of the record will be denied without prejudice to defendant's renewing such motion after plaintiff has had an opportunity to amend its pleading within twenty days from this date, or by affidavit to assert such facts as to preclude the granting of such motion.