Mr. Abrahams and Mr. Phillips agreed so to divide the argument that each would address himself to certain subject matters. During argument Mr. Abrahams, in Mr. Phillips' presence, stated 'He (Phillips) has no program which he has stated for reform of Pennsylvania Railroad'. The trial judge inquired 'You mean he has no program or he has no program which he has stated?' Mr. Abrahams replied 'He has no program which he has stated, but actually I believe he has no program.'
In view of the close association between Mr. Abrahams and Mr. Phillips in the conduct of Civil Action 24456 I infer that Mr. Abrahams spoke with knowledge.
Despite Phillips' frequently demonstrated capacity for self-expression and the promptness and vigor with which he unfailingly asserted what he believed were his rights, Mr. Phillips did not interrupt Mr. Abrahams at the time of that statement nor did he, during that proceeding, challenge Mr. Abrahams' authority to make that statement on his behalf nor did he then or thereafter in that proceeding disavow the truth of Mr. Abrahams' statement. I find that Mr. Abrahams' statement was made in Phillips' presence, with his authority and approval.
The statement in Symes' May 2 letter in respect thereof was not false or misleading with respect to a material fact at the time and in light of the circumstances under which the statement was made.
43. In failing to state the number of years of services covered by Phillips' fee application in the United Corporation case, Symes' letter of May 2, did not omit to state any material fact necessary in order to make the statements therein not false or misleading.
44. In failing to state all of the affirmative findings made by the Securities and Exchange Commission with respect to Phillips' fee application in the United Corporation case and the findings made by Chief Judge Leahy of the District Court of Delaware, Symes' letter of May 2 did not omit to state material facts necessary in order to make the statements in the May 2 letter not false or misleading.
45. Symes' May 2 letter accurately quoted that part of the opinion of the Securities and Exchange Commission in the United Corporation case which the letter purported to quote.
46. The United States District Court for the District of Delaware, on December 30, 1957, filed an order which was otherwise unreported. Defendants were, on May 2, 1958, wholly unaware of the filing of the order.
Paragraph 2 of the order directed 'That the Commission's of fact and conclusions of law in its findings, opinion & order dated June 28, 1956 with respect to Randolph Phillips and Joseph B. Hyman, Esq. are hereby annulled and voided * * *.'
Paragraph 7 of the same order provided, however, 'The provisions of the Plan relating to the payment or denial of fees and expenses and the Findings, Opinion & Order dated June 28, 1956 of the Commission should be modified in accordance with the Opinion and Judgment of the Court of Appeals filed October 24, 1957 and the Order therein and as so modified, approved and enforced.'
Paragraph 9 of the same Order, moreover, provides 'This proceeding is hereby remanded to the Commission for the purpose of modifying its Findings, Opinion & Order dated June 28, 1956 in accordance with the terms and provisions of this Order, and upon notice of the entry of this Order the Commission is directed so to modify said Findings, Opinion & Order.'
The language of the Order of December 30, 1957 was that of Phillips who wrote the form of decree which was submitted to the Delaware District Court.
47. It is judicially noted from the opinion of the Court of Appeals for the Third Circuit ( In re United States Corporation, 249 F.2d 168) that, in the United Corporation case, Phillips made three claims for compensation and for expenses therein as follows:
Claim (1) $ 15,000 plus $ 7,558
Claim (2) $ 24,000 plus $15,857
Claim (3) $249,120 plus $26,925
Total $288,120 plus $50,340 expenses.
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