Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1920-12-29
Ends Suit
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lions is generally matter private
between the parties and the only
reason known to me for submitting
this settlement to the court is the
unusual fact that it consists in the
payment by one set of defendants
to another defendant Of a large sum
of money in consideration Of a gen.
eral release.
1.-THE individual defendants are
buying their peace from the plaintiffs
By paying money to the corporate de-
PENDANT. The only interest of the
plaintiffs in this suit, however, is to
get money for the corporate defen-
dant and counsel fees and expenses
for their own solicitors.
However, since the appreciation of
the court has been asked. it is given
for the following reasons: This bill
alleges a conspiracy to cause the
corporate defendant to violate the
Sherman Act by doing very expen-
sive things. ergo, says the bill, the
individual defendants must pay as
damages what their conspiracy cost
the New York, New Haven and Hart
ford railroad. I have regarded this
as an extremely doubtful cause of
action, difficult to prove and in out
come uncertainty itself.
after the repeated attacks upon
it, however, the bill has been retain
ed.-so far as I am concerned-mainly
because underneath the maze of
pleadingS one outstanding fact re-
mains-viZ: that the directors of the
railroad or majority Of them pur-
sued the consistent course of acquir-
ing everything that could be called
competing transportation systems in
New England and many that-to my
mind-could not be called competing.
paying for such acquisitions a great
deal of money or property constitut-
ing an outlay which in the light of
subsequent events it would be diff
ficult to justify on business basis.
Now that plaintiffs have retracted
all suggestions of personal profit by
defendants and retracted whatever
allegations of moral wrong doing
are in the bill and all that may be
suggested by the business transac-
tions aforesaid, the case is eminently
one for settlement. 1t really rests.
think, on what the court of last re-
sort may think as to how directors
should manage investments.
"The New York directors or their
personal representatives who are the
individual defendants, are evidently
not all to be treated alike. They were
in office at different times and the
acts complained of are not evenly
distributed, or anything like evenly
distributed, over the twenty odd
years covered by the pleadings
Further. they can be liable only
for their personal acts. and it re-
mains wholly unknown to me-and /
presume largely to the plaintiffs
how far the personal actions of these
particular defendants contributed to
the corporate acts complained Of
Some years Of litigation having
proved-to mellow costly and un-
certain the whole matter must be, it
is gratifying result to avoid further
investigation of what can never be
wholly undone.
sistently declined to bring about such
q suit as this or to give it any
pecuniary assistance for the frank
ly stated reason that it would not
pay l am not aware that the cor
porate defendant has ever expressed
any opinion on any other point of
policy. Now money is offered to it,
and it seems to me perfectly proper
proceeding on the part Of the corpor-
alton to take fund which, however,
has been produced wholly by the
laborS Of others.
This last is the ruling point re-
specting the allowance of counsel
fees. 1t is substantially admitted
that the plaintiffs have but furnish
ed their names. The corporate de-
PENDANT has been no more than q
spectator. the work has been done
wholly by counsel on both sides and
insofar as any fruit is produced it is
>wholly the work of plaintiffs coun-
sell
Large as the settlement is. / see
no reason why the rule usually
adopted in this jurisdiction in respect
of recoveries Of sums largely specu-
lative by counsel operating on con-
tingent fees should not be applied
and l award third of the settle
ment to plaintiffs counsel"
Asa P. French, Arthur Berenson,
Francis P. Garland. Bernard Beren-
son and Frank M. Swacker were
counsel for the compliments.