Appalachian Power Co. v. American Institute of Certified Public Accountants

Second Circuit

Appalachian Power Co. v. American Institute of Certified Public Accountants

268 F.2d 844

CourtCourt of Appeals for the Second Circuit

DecidedJune 17, 1959

DocketDocket 25715

StatusPublished

Cited by2 cases

This text of 268 F.2d 844 (Appalachian Power Co. v. American Institute of Certified Public Accountants) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Appalachian Power Co. v. American Institute of Certified Public Accountants, 268 F.2d 844 (2d Cir. 1959).

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Opinion

PER CURIAM.

On a theory of prima facie tort, plaintiffs seek to enjoin defendants, a professional association of accountants and several of its officers, from distributing to its members and others a letter to the effect that the Institute considers certain accounting procedures improper. Plaintiffs allege that in the preparation of this letter the Institute disregarded its usual practice of circulating proposed opinions for comment prior to their issuance and that the promulgation of the views contained in the letter, because of the Institute’s authority in the accounting profession and in the business community, will impair plaintiffs’ credit and limit their growth.

The court below properly considered this action as on a motion for summary judgment once both parties had filed supporting affidavits to their motions. Fed.R.Civ.P. 12(b) specifically authorizes this procedure, and we do not see that plaintiffs were denied the opportunity to present materials pertinent to summary judgment which the rule provides.

On the merits we agree with Judge Levet’s reasoned opinion below, D.C.S.D.N.Y., May 20, 1959. We think the courts may not dictate or control the procedures by which a private organization expresses its honestly held views. Defendants’ action involves no breach of duty owed by them to the plaintiffs. On the contrary every professional body accepts a public obligation for unfettered expression of views and loses all right to professional consideration, as well as all utility, if its views are controlled by other criteria than the intellectual conclusions of the persons acting. Absent a showing of actual malice or its .equivalent the courts would be making a great mistake, contrary indeed to their own ideals and professions, if they assumed to restrict and denigrate this widely recognized and assumed professional duty.

By stipulation of the parties this appeal was heard both upon the appellants’ motion for a stay and upon the merits. Our order must therefore be that the stay heretofore granted is vacated and the judgment below is affirmed.

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PER CURIAM.

On a theory of prima facie tort, plaintiffs seek to enjoin defendants, a professional association of accountants and several of its officers, from distributing to its members and others a letter to the effect that the Institute considers certain accounting procedures improper. Plaintiffs allege that in the preparation of this letter the Institute disregarded its usual practice of circulating proposed opinions for comment prior to their issuance and that the promulgation of the views contained in the letter, because of the Institute’s authority in the accounting profession and in the business community, will impair plaintiffs’ credit and limit their growth.

The court below properly considered this action as on a motion for summary judgment once both parties had filed supporting affidavits to their motions. Fed.R.Civ.P. 12(b) specifically authorizes this procedure, and we do not see that plaintiffs were denied the opportunity to present materials pertinent to summary judgment which the rule provides.

On the merits we agree with Judge Levet’s reasoned opinion below, D.C.S.D.N.Y., May 20, 1959. We think the courts may not dictate or control the procedures by which a private organization expresses its honestly held views. Defendants’ action involves no breach of duty owed by them to the plaintiffs. On the contrary every professional body accepts a public obligation for unfettered expression of views and loses all right to professional consideration, as well as all utility, if its views are controlled by other criteria than the intellectual conclusions of the persons acting. Absent a showing of actual malice or its .equivalent the courts would be making a great mistake, contrary indeed to their own ideals and professions, if they assumed to restrict and denigrate this widely recognized and assumed professional duty.

By stipulation of the parties this appeal was heard both upon the appellants’ motion for a stay and upon the merits. Our order must therefore be that the stay heretofore granted is vacated and the judgment below is affirmed.

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268 F.2d 844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appalachian-power-co-v-american-institute-of-certified-public-accountants-ca2-1959.

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