Since the plaintiff has not alleged any facts to show that the boards of directors of these corporations, on whose behalf he seeks to sue derivatively, have gone beyond the bounds of reason in their decision not to sue, and he has not alleged any breach of trust on their part, plaintiff may not bring this action derivatively.
Turning to the issue of the plaintiff's right to maintain this action in his own behalf, Ash alleges that the lessening of competition resulting from IBM's acquisition of Old SRA will lead to a decline in the value of his stock in Harper & Row, Ginn & Company, and Sperry Rand. This he alleges is a threatened personal loss which gives him standing to sue individually under 16 of the Clayton Act. Plaintiff distinguishes the cases where stockholders have not had standing to sue under 4 of the Clayton Act for treble damages from the instant case, where he seeks an injunction. He reiterates his basic contention that the Congressional purpose in the passage of 16 is the encouragement of private, preventative, antitrust action.
The threatened loss which plaintiff alleges he will suffer is not a threatened loss to himself, but a threatened loss to the corporations of which he is a stockholder. As plaintiff points out, Judge Ganey did not decide this issue in Gomberg v. Midvale Co., 157 F.Supp. 132 (E.D.Pa.1955), but he did say on this point at p. 141:
'While this case ( General Investment Co. v. New York Central Railroad Co., 6 Cir., 23 F.2d 822) along with Continental Securities and Ashwander cases may suffice as an answer to the right of the stockholder suing in his own right, * * *'
These cases cited by Judge Ganey and the Hillman case, infra, do answer the question of plaintiff's right to maintain this action in his own behalf. In Continental Securities Co. v. Michigan Cent. R. Co., 16 F.2d 378, at 379, (6th Cir. 1926), the court said:
'* * * the favor of section 16 extends only to injunctive relief to be given to 'any person * * * against threatened loss or damage.' This is not appropriate language to reach such a suit as this, in which a stockholder files a representative suit, and apprehends no 'threatened loss or damage' save that which comes through the damage to his corporation.'
In General Investment Co. v. New York Central Railroad Co., 23 F.2d 822 (6th Cir. 1928), the court relied on Continental Securities, supra, holding that 16 does not extend to a stockholder's suit because the threatened loss does not flow directly to the stockholder. Lastly, in National Supply Co. v. Hillman, 57 F.Supp. 4, at page 8 (W.D.Pa.1944), the court stated:
'He (the plaintiff) has shown no special damages to himself which would qualify him to sue. He cannot sue under Section 16 of the Clayton Act for an injury to the plaintiff company.'
On the basis of the above authorities, plaintiff has no standing to bring this suit on his own behalf under 16 of the Clayton Act on this record. Under these circumstances, the defendant's Motion (Documents 4 and 5) will be granted.