Barry Escott and Others v. Barchris Construction Corporation, and Others, Defendants-Respondents, Georgehall, and Others, Intervenors-Appellants

*735FRIENDLY, Circuit Judge

(concurring) :

While I concur in the judgment of reversal, the combination of some ambiguity in the pertinent statute, 15 U. S.C. § 77m, with the unsatisfactory character of F.R.Civ.P. 23(a)1 makes the case more difficult for me than it is for my brothers.

A number of the considerations advanced in the court’s opinion seem rather inconclusive. Thus, I cannot see how the undoubted utility of the spurious class action in avoiding a multiplicity of trials of the same issue calls for the grant of intervention after the statute of limitations would bar an independent action by the proposed intervenors; if economy of judicial time were the only consideration, denial would provide even more. Neither is it altogether clear that prolonging the period for intervention makes the bringing of the class action more attractive to the sponsors. Although this will increase the recovery and the attendant fees if the action succeeds, it will also tempt potential intervenors to stay on the side lines and watch the progress of the game, and thus place on the initial plaintiffs a heavier current and possibly ultimate burden. The argument that initiation of the action gives notice to the defendants to get their evidence on the issues into shape meets most of the statutory policy outlined in Order of R. R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 88 L.Ed. 788 (1944), but not quite all of it. Even on appellants’ view, one litigable issue is whether the would-be intervenors had, or should have, discovered the untrue statement or omission more than one year before the date when the action was instituted, see fn. 3 to the court’s opinion, and memories on this may “have faded, and witnesses have disappeared,” if the intervention is too long postponed. Similar considerations may apply to proof of damages, and to defenses individual to a particular plaintiff. Agreeing with my brother Hays that defendants’ answer to Judge Frank’s “trap”’ argument, York v. Guaranty Trust Co.,. 143 F.2d 503, 529 (2 Cir.1944), rev’d on other grounds, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), is unrealistic, I think the argument itself is equally so. when it is invoked on behalf of intervenors not shown to have known of the-class action before the statute ran as-to them.

The authorities on which the court relies are not so strong as they might appear. It is indeed profitless to argue-whether “dictum” or “holding” best characterizes Judge Frank’s statement in-York that a spurious class action tolls-the statute of limitations for later intervenors. What is clear is that the intervenors in question were not before the-court and that the statement was initially framed without benefit of argument from counsel. See Appellee’s Petition-for Rehearing, pp. 19-20. While the question was raised on rehearing, the-Court’s attention at that time undoubtedly centered on the quite different problems that led Judge A. N. Hand to withdraw his concurrence, see 143 F.2d at 529-531, and the Supreme Court later to-reverse. Moreover, despite the breadth-of Judge Frank’s language, the precise issue under the view of the majority in-York was laches, erroneously believed to-be the applicable principle, and not a statute of limitations. Union Carbide and Carbon Gorp. v. Nisley, 300 F.2d 561 (10 Cir.1961), was decided over a powerful dissent by Judge Pickett, and a-stipulation for dismissal of a petition for certiorari, Wade v. Union Carbide & Carbon Corp., 371 U.S. 801, 83 S.Ct. 13, 9 L.Ed.2d 46 (1962), prevented possible Supreme Court review.

With no truly pertinent legislative history called to our attention, we are thus left with little more than the words of § 13 of the Securities Act, very likely set. *736•down without any thought of such a legal curiosity as the spurious class action, then relatively little known. See 3 Moore, Federal Practice [[23.10 [2] (2d •ed. 1964). The words do favor the appellants, as Judge Hays’ opinion shows. Yet one may wonder how far Congress realized it was saying something different than, e. g., “No person may maintain a claim arising out of a violation of [the pertinent sections] unless he brings an appropriate proceeding to enforce such ■claim within” etc., where the language would tend in the other direction. Still "the words are what they are, and I see no sufficient reason for refusing to follow them when they lead to no untoward results.

But one ought not press too far. One necessary limitation is indicated in fn. 3 to the court’s opinion. Moreover, our holding does not compel us to follow Judge Frank’s “suggestion” in York and the Tenth Circuit’s decision in Nisley that persons barred from initiating actions on their own behalf were to be allowed to intervene in spurious class actions at any time prior to final judgment. Judge Frank himself owned that his suggestion “does not apply to a jury case .after the trial has concluded, for it would involve a new hearing of the evidence by the jury.” Bascom Launder Corp. v. Telecoin Corp., 204 F.2d 331, 336 (2 Cir.), cert. denied, 345 U.S. 994, 73 S.Ct. 1133, 97 L.Ed. 1401 (1953); I would be inclined to extend that limitation to any trial or to a successful motion by the plaintiffs for summary judgment. See 3 Moore, supra [[23.13, at 3476.2 Finally I would limit decision to the particular statute of limitations here before us; on so close an issue, relatively slight differences in wording or policy or legislative history might demand a different result. Hopefully the necessity for such difficult determinations may be avoided by revision of Rule 23, see fn. 1 supra.

. See Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the United States-District Courts 98-99 (1964).

. I am speaking only of persons barred by limitations from starting actions on their own account; different considerations might apply to persons not so barred who could rely on the judgment by way of collateral estoppel. Cf. Zdanok v. Glidden Co., 327 F.2d 944, 954-956 (2 Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338. 12 L.Ed.2d 298 (1964).