Albert KAUFMANN, Plaintiff-Appellant, v. Mary Wells LAWRENCE et al., Defendants-Appellees, and Warren J. Kratky et al., Defendants.
No. 697, Docket 74-2591.
United States Court of Appeals, Second Circuit.
Argued March 4, 1975.
Decided April 3, 1975.
Stanley Nemser, New York City (Norman S. Nemser, Peter Wang, and Nem-ser & Nemser, New York City, of counsel), for plaintiff-appellant.
Robert J. Sisk, New York City (Amal-ya L. Kearse, George A. Davidson, Robert F. Herrmann, Hughes Hubbard & Reed, New York City, of counsel), for defendants-appellees.
Before FRIENDLY and GURFEIN, Circuit Judges, and BARTELS, District Judge.
Of the Eastern District of New York, sitting by designation.
PER CURIAM:
This is an appeal from a denial of a preliminary injunction by Judge Carter against the consummation of a tender offer by Wells, Rich, Green, Inc. (the Corporation) to its own stockholders which the appellant contends amounts to “going private.” Appellant contended that there were omissions in the prospectus which were material, that appellees, directors of the Corporation, were engaged in a fraudulent scheme and device in violation of the 1934 Securities and Exchange Act, and that appellees should have taken other steps to acquaint the public stockholders with facts material for their determination of whether to sell their shares in circumstances that might cause the company to be delisted on the Stock Exchange.
Appellant failed to apply for a stay pending appeal.
The tender offer has been consummated. While this does not necessarily make the case moot so as to prevent the granting of alternative mandatory injunctive relief, we see no reason at this time, however, to upset the carefully considered judgment of Judge Carter in denying a preliminary injunction. A review of the law applicable will, in any event, be more meaningful after a full trial. We trust that Judge Carter’s calendar will permit an expedited trial.
The order denying a preliminary injunction is affirmed.