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SCHWARTZ v. KAUFMAN

January 9, 1940

SCHWARTZ
v.
KAUFMAN et al.



The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This case comes before this Court on the return of an order to show cause why an order should not be made and entered herein staying all proceedings in this suit until the final determination of the consolidated cause of Augusta Winkelman et al. v. General Motors Corporation, et al. and Fanette S. Kahn v. General Motors Corporation, et al., in the District Court of the United States for the Southern District of New York (No. E 84 -- 221), hereinafter referred to, as the "Winkelman-Kahn" suit.

The Winkelman-Kahn suit, and the suit at bar, which will be referred to as the "Schwartz" suit, are typical stockholder's derivative suits, brought on behalf of General Motors Corporation against its officers and directors, and certain other corporations to recover for alleged losses incurred by the adoption and administration of a bonus plan, and other plans of supplementary compensation for its employees.

 The Winkelman suit was commenced on October 22, 1936.

 The Jacobson suit was commenced October 19, 1936.

 The Kahn suit was commenced on April 21, 1938.

 All these were consolidated and are now pending as the Winkelman-Kahn suit, as aforesaid.

 Many motions have been made and decided, and the Winkelman-Kahn suit will be ready for trial early this year.

 It is not a collusive suit and it has been prosecuted in good faith.

 All of the issues, which may be tendered in the Schwartz suit, and many more, will be determined on the trial of the Winkelman-Kahn suit.

 The Judgment in the Winkelman-Kahn suit, it is conceded by plaintiff's attorney, will be res adjudicata of all issues raised in this Schwartz suit.

 This Court has power to grant the relief sought on this motion. Landis v. North American Co., 299 U.S. 248, 57 S. Ct. 163, 81 L. Ed. 153.

 The Winkelman-Kahn suit is pending in the Southern District, and this Schwartz suit is pending in the Eastern District; therefore, no consolidation can be ordered. Alfred Pollak v. Long Island Lighting Co. et al., 246 App.Div. 765, 283 N.Y.S. 913, is not in point.

 A speedy determination of the issues that may be tendered in this Schwartz suit will be assisted by staying all proceedings in this Schwartz suit until the ...


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