Korn v. Franchard Corp.

FRIENDLY, Circuit Judge

(concurring) :

Since I regard Judge Feinberg’s opinion as correctly applying the present law in this circuit, I concur therein. However, despite the obvious appeal of the “death-knell” doctrine, I am not sure it affords a rule that is truly workable or, indeed, is legally sustainable. If my fears should be realized, I might wish on some subsequent occasion to request that the court consider in banc whether we are not obliged to formulate a rule that will avoid the necessity of making such ad hoc judgments as have been required in these and other cases and also will afford equality of treatment as between plaintiffs and defendants. Perhaps, before occasion for doing this should arise, we shall have received enlightenment from the Supreme Court.