OFFICE OF GENERAL COUNSEL TRAINING PROGRAM LECTURES. Twenty-eighth Session - May 22, Office of General Counsel
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1 i I i FFICE F GENEAL CUNSEL TAINING PGAM LECTUES Twety-eighth Sessio - May 22, 1957 Subject: Speaker: ffice of Geera Couse Mr. Thomas G. Meeker, Geera Couse M. MEEKE: I am kow, sometimes, as the chief ega officer of the Commissio. The duties of our office exted far beyod merey represetig the Commissio i judicia proceedigs. That is a poit I shoud ike to make to your Divisio, as we as to ay other divisio that may be represeted here today. Amog other thigs, I am caed upo by the Chairma ad members of the Commissio to advise o poicy matters which sometimes cut across divisioa activities, sometimes ivove ega matters, sometimes ivove tactics or strategy, ad sometimes it's amost ike beig egaged i batte ad arragig your forces--pag ad pottig a advace or retreat--but i ay evet my iitia approach to a probems commeces from the stadpoit of ega aaysis. I additio we advise ad assist the Commissio ad the Divisios ad ffices with respect to statutory iterpretatios, particuary ove rue iterpretatios. To give a exampe, the rues uder Sectio 16 of the 1934 Act have bee the source of cosiderabe study ad commet over the ast eight or te years, ad oy a year ago the Commissio, after cosiderabe thought ad much discussio, adopted a geera reease which, i effect, documeted its purposes with respect to the exemptio uder ue X I commed that reease to you for your examiatio i terms of the type of thig that I thik for the ar ad for the idustry a admiistrative agecy such as this ought to produce so that the pubic may be we advised as the Commissio's ow thikig with respect to those areas i which the Cogress has deegated to it a egisative authority ad which i the exercise of its "expertise" (fraky I advise agaist the use of that word i ay judicia proceedig) it has determied shoud be the rues of the game. We sped cosiderabe time workig with the other Divisios i draftig ad re-draftig rues. Some rues which are pecuiar to the work of the Divisio ad the professioa skis of the Divisio's persoe, such as the stabiizig rues adopted a itte over a year ago, we woud't dare veture ito. We eave that to those experts o maipuatio ad stabiizatio. owever, from time to time, such as is the case with ue 133, we are asked to give the Commissio our view as to the power i the Commissio to promugate such a rue, ad that we do. It may be of iterest to you to ote that over the years i spite of the frequet cosideratio of the ue 133 probem there had ever bee a defiitive (297)
2 "/.: " -2 - ega memoradum proposed after the 23rd aiversary of the Commissio, i our fies with respect to the power of the Commissio to adopt that rue. Now there is a comprehesive ega memoradum from our office advisig the Commissio o the pox~r to promugate such a rue. I additio to that, we have the geera resposibiity for coordiatig the activities of the Commissio with the Cogress ad particuary i the use of the egisative amedmet program which the Commissio has bee tryig to get off the groud for the past few years. I the 1954 program, as i the ast program, a Commissioer was desigated to co-ordiate the activities o a poicy basis. That is hepfu because I for oe disike havig to ru to the Commissio tabe to aoy them every day for poicy guidace. I prefer to operate away from the tabe as much as possibe withi the extet of my jurisdictio, ad it is ice to have a Commissioer who ca tak to the others o a iforma basis ad get a poicy determiatio without havig to write a memoradum o it ad without havig to make a forma appearace. We have foowed the same course i this yeargs egisative program. ut the resposibiity for settig the time tabe, for arragig the meetigs with idustry, ad for co-ordiatg the activities of the Divisios rests with this office. Each Divisio i this process carries its ow oad with the Acts that it admiisters, as the Divisio of Corporatio Fiace with proposed amedmets to the 1933 Act ad such sectios of the 1934 Act that costitute a part of their work-oad, the Divisio of Tradig ad Exchages with respect to the 1934 Act, ad the Divisio of Corporate eguatio with respect to the Ivestmet Compay Act. They a do draftig, ad we have a iterdivisioa egisative committee of which I am the omia Chairma i terms of gettig it a together, ad we work o a team basis i this area. To get to aother aspect of our activity, most of the Cogressioa appearaces have bee haded i the past two years by the Chairma; however, from time to time he eeds briefig ad someoe aogside of him to take the resposibiity for ega opiios, ad that is part of our fuctio. As you may or may ot kow, there is presety a Committee of the ouse Iterstate ad Foreig Coerce Committee which has the grad ame of the Committee o Legisative versight. I spite of whatever defiitio may first come to your mid, their fuctio is to review the activities of this Commissio i ight of the Statutes which we admiister to see whether or ot we are goig beyod the statutory powers coferred upo us by the Cogress i the eactmet of the six Acts we admiister. We had the resposibiity of gettig together the materia i respose to the first iquiry of that Committee, ad that ivoved cooperatio from other Divisios ad ffices. It is our fuctio to pa the submissio ad prepare for whatever hearig may occur. (29S) Ig a i I
3 a ia -3 = ccasioay we are caed upo, as i the Crowe Coier case, to ed oe of our top awyers to a pubic ivestigatio for the purpose of actig as the presidig officer or chief ivestigator. I additio to that we are caed upo, from time to time, by the Commissio to coduct private ivestigatios, particuary i areas which ivove possibe empoyee miscoduct or possibe ifractios of our ues of Practice, or perhaps uethica practices which may ead to a (e) proceedig to determie whether a awyer practicig before the Commissio shoud be barred because of past coduct. esides these geera areas of activity, we are the iaiso for the Commissio with the Departmet of Justice. It makes good sese for a Departmet as arge as Justice to have oe office which is the oe to be caed whe they have a iquiry ad it heps i doig busiess to kow to whom you are takig. To give you a short exampe of how that works out: Severa years ago we had a fairy we pubicized proceedig kow as Dixo-Yates. Durig the course of the proceedig it was brought to the Commissio's attetio that perhaps someoe had tried to cause a witess to testify i a maer cotrary to what he had iteded by brigig a itte pressure to bear. We made a very quick ivestigatio ad decided that there was sufficiet evidece of a possibe vioatio of Federa aw to warrat the referra of that matter immediatey to the Departmet of Justice. The matter was so referred, ad the Departmet of Justice carried o from there. Certaiy we had a resposibiity for the character ad itegrity of our ow proceedigs. the other had, we do ot have the equipmet ad resources of the Federa ureau of Ivestigatio. We have eough to do with carryig o our ow ivestigatios, ad i a aciary matter such as that, ivovig vioatios of Tite 18, rather tha the crimia provisios of our Statutes, we fa back o the resources of the Departmet of Justice. We aso have the resposibiity for advisig the Commissio whether or ot, as the Statutes suggest, there is sufficiet evidece of crimia vioatios of our Statutes to warrat referece of a case for prosecutio to the Departmet of Justice. The basic resposibiity for the ivestigatio of ay case arisig here or i the fied is geeray i the Divisio of Tradig ad Exchages. It is oy whe the case i the eyes of the egioa Admiistrator or Divisio director seems to have crimia potetiaities that our ffice has ay impact o the matter from that poit o. Normay we get a competed crimia referece report. We have i recet moths because of the voume of work ad after discussio with the Departmet of Justice ad review of other types of crimia referece reports submitted by other agecies attempted to reduce the size of these reports from the size of "Goe With The Wid" to somethig more readiy absorbabe i 15 or 20 pages with a of the exhibits ogicay ad iteigety appeded. We fid that it takes more time to write a short crimia referece report, but it takes ess time to get it to the grad jury ad tria if more time is take iitiay by those peope preparig the report. There is othig that is more apt to discourage a youg Assistat U. S. Attorey tha a maipuatio case from us which has i the report a summary of ivestigatio perhaps 150 or 200 pages ad barres of detais (299)
4 -4- o trasactios of that sort. So we try to review these as they come i from the fied or the Divisioa offices ad suggest chages i the report, such as codesatio or additioa ivestigatio, if either is ecessary; ad, whe we get ito a dispute with them, we are very gad to take the matter before the Commissio, ad do. If we ca review a case i three or four days ad cocur with the egioa office or the Divisio, the we take the matter before the Commissio. We are, i effect, servig as the Commissio's eyes with respect to that report. They, of course, sometimes questio us with respect to our recommedatio -- very vigorousy -- but ormay they go aog with our recommedatio. That is a brief suumary of what we do. Let me ow commet briefy upo our fuctio with respect to some of the other pricipa areas of our activity. Let us first take up itigatio. The Geera Couse's ffice is resposibe for a Commissio itigatio, icudig matters before the Supreme Court of the Uited States, ad is aso resposibe for supervisig District Court itigatio. You might be iterested to kow that with respect to matters before the Supreme Court of the Uited States, the Statute provides that the Soicitor- Geera must approve ay petitio for certiorari which we desire to fie. e must be persuaded that this is a importat questio, but oce he puts his ame o the petitio, the we are free to go forward ad he is i it with us to the ed. It has bee a very distict traditio i this Commissio for its Geera Couse or a desigated associate or assistat to argue cases for the Commissio before the Supreme Court. That is a ice reatioship, ad oe which is ot ejoyed by every agecy of the Govermet with the Soicitor-Geera. It is eemetary that each of the Statutes admiistered by the Commissio has review provisios providig for direct review of Commissio orders i the U. S. Court of Appeas. The Acts aso provide for eforcemet of certai of our orders i the U. S. District Court through ijuctive proceedigs or appicatios to eforce Commissio orders such as are sometimes issued uder the Pubic Utiity odig Compay Act of Sometimes, of course, as i the recet Uited case -- a decisio which we have ot received yet from the Third Circuit, ivovig fee appeas -- those Cou~ssio orders were eforced i the District Court which at that poit performed a reviewig fuctio. The it goes to the Court of Appeas for a further reviewig fuctio. Aother area of our itigatio activity is Chapter X ad XI. The Commissio acts as a adviser to the U. S. District Court i reorgaizatio matters, where there is a arge pubic stockhoder iterest ivoved, ad participates i appeas take by other parties. It is importat to ote that o matter how aggrieved we may fee for some pubic stockhoder iterest, we do ot have the right to assert that appea ourseves but ca oy give the Court of Appeas the beefit of our judgmet i the evet oe of the parties to the reorgaizatio appeas. (300) i ia g
5 D D -5o The other hod that we have i this area is that we may move i Chapter XI proceedigs for arragemets to dismiss if we beieve the proceedig propery beogs i Chapter X. I co--,ed the Geera Stores case for your readig o that poit. We are ecouraged from time to tim by private parties or o our ow motio to participate i private itigatio amicus curiae. e thig that disturbs me is the oose way i which the participatio amicus curiae is cofused with itervetio. I my more tha three years with the Commissio we have had severa amicus curiae participatios ad we have aso had (ad I thik it is oe of the first i the history of the Commissio) a itervetio. The basic distictio is that whe we move to itervee ad become a party paitiff or a party defedat, we move i there for the purpose of puttig i the record facts of which we have kowedge ad which we do't thik the parties to the itigatio have kowedge. You ca readiy see from your experiece with the Commissio that there woud be such areas where a Goverwet agecy may have access to iformatio which it wishes to make pubic ad which may ater the deveopmet of the factua record for the District judge. Years ago whe the aw uder Sectio 16 was beig deveoped, the Commissio had a food of appearaces amicus curiae. So much so that the first importat case where the Co~uissio did't show up, a judge i the Secod Circuit made ukid remarks about the Commissio for faiig to show up. I recet years due to our ecoomy wave the Commissio cut dow o everythig, icudig pritig coats, ad the Commissio had a tacit poicy agaist participatig i cases amicus curiae, athough from 1953 to 1957 we were ivoved i approximatey five. e of the most recet oes, of course, was the famous Aeghey case where we participated i the Supreme Court amcus curiae soey o the questio ivovig the Ivestmet Compay Act. We aways have a probem i these cases whether or ot to make a ora argumet. There are times whe I ca assure you it makes good sese ad it is i the pubic iterest ot to make a ora argumet. My ow covictio is that the Aeghey case was oe of them i which we shoud ot have ad did ot argue oray. I commed the decisio i that case as the best evidece of the correctess of my positio. Every ow ad the the Commissio gets sued. That causes great aarm. Sometimes we get a temporary restraiig order agaist us, ex varte, ad you kow that most ijuctive suits are tried i the ewspapers to competio before the courts get them docketed. We had that happe i the Great Sweet Grass case. So we get sued occasioay, at which time the Geera Couse's ffice takes over i defese of the Coaissio. Every oce i a whie someoe threates to subpoea a Commissioer, as they did i the Swa Fich case. We take the positio here that a Commissioer's testimoy may or may ot be take, ad this we woud cotest based o what they were ookig for. The issue shoud be raised here i the District of Coumba o depositio i a civi case ad o other way. We woud eve take that positio i a motio to quash a summos which was served withi 100 mies. The difficuty of movig to quash such a subpoea is that there is o appea from a deia of a motio to quash. ( 30 I) /
6 -6 I coectio with appeate itigatio, of course, we write briefs ad we get the assistace of other Divisios ad ffices. For exampe, i the Isurace Securite.s case without the Divisio of Corporate eguatio our office coud't have haded the preparatio for tria ad the briefs. We ost tbe.t case i the District Court ad are ow hadig it o appea. We coud't hade it without the judgmet, experiece ad assistace of those who have bee admiisterig the provisios of the Act ad proceedig uder the iterpretatios which we assert to be correct ad ega uder the Pubic Utiity odig Compay Act. We attempt to wi a cases, aturay. There is a uique reatioship here i our Commissio uike some of the other agecies, of the Geera Couse to the Commissio i coectio with its quas-judicia1 activity. I have othig to do with it. This is a great protectio for me o the i, I ca assure you. ur ffice of piio Writig is a idepedet office. This reatioship, due to takig the Geera Couse a~ray from the quasi-judicia activity of the Ccamissio, is i my estimatio oe of the best thigs that the Commissio does because it eimiates ay possibe caim that the Commissio is beig advised by a perso who may have to prosecute i a aciary matter reatig to a Judicia determiatio or quasi-judcia determiatio which the Commissio may make. [ shoud ike to say a brief word about District Court itigatio. Some of you may woder why with good awyers such as we have i the egioa ffices we have ay reatioship with cotested itigatio. A I ca say to you is that a Govermet agecy, uike a private itigat, has a duty to the pubic ad to the Cogress (ad of course it reports to both), ad i the exercise of that duty i the ega area it seems to me that there shoud be uiformity i the egioa ffices i itigatio. You try to get uiformity i your Divisio through your recety orgaized rach of Sma Issues i the eguatio A fied. We are terriby disturbed whe a egioa ffice goes i without proper preparatio. ut we are supposed to be satisfied i cotested itigatio with the me~orada that are beig fied~ the ega positios that the egioa ffices are takig with respect to cotested itigatio. I am sorry that time does ot permit us to describe some of our other fuctios but perhaps we ca wet agai i oe of these sessios. Thak you. Adjoured. (302) m ia g g
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