(concurring and dissenting in part):
I respectfully dissent only from part IV of the majority opinion, which reverses the award of counsel fees.
In granting the award of counsel fees in this case, the district court made the following statement based on its finding of Vaisman’s wilful intent to defraud the plaintiffs:
“In the case sub judice the evidence indicates that Vaisman wilfully intended to defraud the plaintiffs. Due to his relationship with Atlas Interfund, Vaisman was in possession of inside information indicating that the future of Mark I Offset was bleak. (Finding of Fact 33). However, this is not merely a case of an insider trading on non-public information. Vaisman exploited the business relationship of Straub and Erb knowing that Straub was not likely to investigate the *601merits of Erb’s recommendation. Fully aware of this relationship, Vaisman had no doubts that Straub would accept the Erb recommendation, and carried his deception to the point of not even disclosing the condition of Mark I Offset to Erb (Finding of Fact 35). Clearly, Vaisman’s fraud was willful, wanton, and reprehensible. Under the circumstances of this case, therefore, I conclude that the defendants should be made to pay plaintiffs’ counsel fees. Such an award is in conformity with the equitable nature of these proceedings and the broad, remedial interpretation accorded to federal securities legislation.”1 (Pages 18 & 19 of district court opinion dated 11/15/74, Civil No. 513-73, D.N.J., which is reproduced as item 4 of the appendix.)
In Hall v. Cole, 412 U.S. 1, 5 & 15, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), the Supreme Court of the United States stated:
“Thus, it is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted in ‘bad faith, vexatiously, wantonly, or for oppressive reasons.’ [page 5, 93 S.Ct. page 1946]
4s * * * * *
“It is clear, however, that ‘bad faith’ may be found, not only in the actions that led to the lawsuit, but also in the conduct of the litigation.” [page 15, 93 S.Ct. page 1951] (Emphasis added.)
It is clear from the findings of the district court that it found the defendants had proceeded in bad faith “in the actions that led to the lawsuit.”
This principle was reaffirmed by the language of the Supreme Court of the United States in F. D. Rich Co. v. Industrial Lumher Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974), and more recently in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).
In view of the recognition by the Supreme Court of the United States in its footnote 30 in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210, 96 S.Ct. 1375, 1389 (1976), that the district court has power to award attorney’s fees “in the § 10(b) context” where “bad faith” is present, I cannot agree with the majority that the district court does not have discretion to award attorney’s fees under the circumstances of this case. See also Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962).
In all other respects, I join in the majority opinion.
. The district court opinion also contained this language at page 13:
“More importantly, defendants Vaisman and VaisCo engaged in a course of conduct shocking to the conscience of this court. Vaisman anticipated that Straub would accept the recommendations by Erb and thereby purchase Mark I Offset without inquiry or concern. Taking advantage of the standing business relationship between Straub and Erb, he exploited this to the ultimate benefit of himself and VaisCo. Vaisman knew the financial condition of Mark I Offset and used this information to rid himself and Atlas Interfund of stock in the failing company.”