Commodity Futures Trading Commission v. Weintraub

Transcription

1 Washington and Lee University School of Law Washington & Lee University School of Law Scholarly Commons Supreme Court Case Files Powell Papers Commodity Futures Trading Commission v. Weintraub Lewis F. Powell Jr. Follow this and additional works at: Part of the Law Commons Recommended Citation Commodity Futures Trading Commission v. Weintraub. Supreme Court Case Files Collection. Powell Papers. Lewis F. Powell Jr. Archives, Washington & Lee University School of Law, Virginia. This Manuscript Collection is brought to you for free and open access by the Powell Papers at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Supreme Court Case Files by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information, please contact

2 [. ;)~~~~~ ~\ ~e-~ ~1 ~ - C!t0 ~ f)c:_! ~ ~ T~~4:-~~~.. ~ ~~~ ~4!;~ ~ ~-~~.. ~ ~..tv~ VQ ~~~4-~~:y ~~Juf-~~1 PRELIMINARY MEMORANDUM October 26, 1984 Conference List 3, Sheet 2 No COMMODITY FUTURES TRADING COMMISSION v. WEINTRAUB, Cert to CA7 (Pell, Coffey, Weigel (DJ)) Federal/Civil Timely 1. SUMMARY: Petr contends CA7 erred in holding that a trustee of a corporation in bankruptcy does not have power to "";' ; '.. waive the debtor corporation's attorney-client privilege with respe~t bankruptcy ~.It... '. ' ' to communications that took place before the petition for ~

3 - 2 - filed a 2. FACTS AND DECISIONS BELOW: Petr in October 1980 complaint against Chicago Discount Commodity Brokers (CDCB) alleging violations of the Commodity Exchange Act, 7 U.S.C. 1 et seq. The parties entered into a consent decree providing for a freeze on CDCB's assets and appointment of a receiver. The receiver in November 1980 filed a voluntary petition in bankruptcy under Chapter 7. Petr initiated a formal investiga ~ ---~ tion and in January i981 issued a subpoena to CDCB's former counsel, resp Weintraub, seeking testimony regarding alleged fraudulent activities and misappropriation of funds by CDCB's officers and employees. Resp Weintraub appeared for the deposition but refused to answer certain questions on the basis of CDCB's attorney-client privilege. The trustee waived the privilege with respect to any communications occurring before the filing of the - petition for bankruptcy. Resp Frank McGhee is president of CDCB, and resp Andrew McGhee is a former officer and director: both of them were targets of investigation by petr, and Frank McGhee was convicted of embezzling funds customers had placed with CDCB. The McGhees intervened in the proceedings before the district court and opposed the waiver of the attorney-client privilege. The district court subsequently ordered resp Weintraub to answer the deposition questions without asserting CDCB's privilege. I/'CA7 reversed and held that a bankruptcy trustee does - not - ~ have power to waive a corporate debtor's attorney-client privi- 1~ with respect to communications that occurred before filing for bankruptcy. ~ other CAs, reached the opposite conclusion. the court acknowledged, have See In Re O.P.M. Leasing Serv-

4 - 3 - ices, Inc., 670 F.2d 383, 385 ~ 1982); Citibank v. Andros, 666 F.2d 1192 V{'(Aa 1982). CA7 distinguished O.P.M. Leasing, which involved a reorganization under Chapter 11, on the that there the board of directors had resigned and the power to waive the privilege adhered to the trustee because there was no other entity authorized to so act. Petn App. 7a. In this case, Frank McGhee remained a corporate officer of CDCB and opposed the waiver of the corporation's attorney-client privilege. Citibank v. Andros, however, was not distinguishable on this grounds and CA7 refused to follow CAB's conclusion for four reasons. First, although the trustee holds broad management powers for the debtor, he does not replace the corporation as an entity. Second, allowing the trustee to waive the corporation's privilege would create unequal treatment between bankrupt corporations and bankrupt individuals. Third, allowing such waiver would discriminate against the corporate debtor solely on the basis of economic status. Finally, and in CA7's view, most importantly, allowing the trustee to waive the privilege would have a potential chilling effect on attorneyclient communications. 3. CONTENTIONS: Petr argues cert is appropriate be- I cause there is a - split in the circuits. See also In re Boileau, 736 F.2d 503 (CA9 1984) (examiner with power of trustee had power, under the circumstances, to waive debtor's privilege). Second, as a matter of corporations and bankruptcy law, CA7 is wrong on the merits. Because the liquidation trustee is granted, in essence, complete management authority, he is the proper party to waive or assert the corporate debtor's attorney-client privilege.

5 - 4 - This result, as the facts here suggest, desirably prevents former directors and officers from abusing the corporation's privilege to shield their own wrongdoing. CA7's holding raises potential conflicts-of-interest problems where a bankrupt corporation may have causes of action against its officers or directors. Petr also argues that CA7's policy arguments are misplaced. Any chilling effect from allowing the trustee to waive the privilege is no greater than that resulting from the possibility that successor management of a solvent corporation might make a similar waiver. Corporations, as artificial entities, are not entitled to be treated the same as bankrupt individuals, and there is no discrimination between bankrupt and solvent corporations because in both cases "management" may waive the privilege. Finally, petr observes that CA7's decision will seriously interfere with the government's ability to enforce criminal, commodity, and securities laws. Resp maintains that the Bankruptcy Code does not resolve this issue and Congress, not the Court, should determine who may waive the privilege on behalf of the bankrupt corporation. The decision by CA2 is distinguishable and CAB's decision is wrong on the merits. Resp also repeats the arguments made by CA7. In an amicus brief supporting petr, the trustee notes that CA7's decision interferes with his ability to bring civil actions against CDCB's officers and undesirably allows dishonest m?nagement to protect itself from personal liability to the estate. 4. ~ISCUSSION: Citibank v. Andros involved the former Bankruptcy Act rather than the current Bankruptcy Code. Nonethe-

6 - 5 - less, CAS spoke in general terms about the trustee's power to..., ~ ~'-- waive the attorney client privilege and nothing in its opinion suggests that it would reach a different conclusion under the Code. Thus, I think the SG is right to argue that there is a split in the circuits. Moreover, it seems incredible that an officer could assert a bankrupt corporation's attorney-client privilege in defending himself against an action brought by the trustee on behalf of the 'state. Th;:;G and the trustee persuasively argue that CA7' s approach will have harmful consequences both for government investigations and for the trustee's exercise of his duties under the Ban~ UEtcy Code. Resp's contention that the issue should be left to Congress is unconvincing inasmuch as the Rules of Evidence explictly contemplate that the courts will define the "common law" of witness privileges. See Fed. R. Evid A GRANT seems appropriate unless the Court wishes to wait for the views of other CAs on this issue. There is a response. October 15, 1984 Bales opn in petn

7 October 26, 1984 Court.... l- oted on , Argued..., Assigned... :...., No. Submitted..., Announced , COMMODITY FUTURES COMMN. vs. WEINTRAUB HOLD FOR G CERT. D JURISDICTIONAL STATEMENT MERITS MOTION N POST DI S AFF REV AFF G D AD SEN T N OT VOTING Burger, Ch. J Brennan, J... ( White, J ~ Marshall, J ' Blackmun, J Powell, J..... l v( Rehnquist, J ~ Stevens, J... ;;.... O'Connor, J

8 J~-~ 9~~~ ;;.~~~-~~~ alb 03/03/85 "( t"ht_~, J ~~ n...~f :f' ~ 1 ; ' JI ~-1~~ 'h<...~ ~~5~~~, A_4.-~~~ ~Le ~~~~ ~. 9 ~ ( r z.. ~~ 4-c ~~~~@. ~~~ ~~ ~ SUMMARY BENCH MEMORANDUM ~C/47 To: Mr. Justice Powell March 3, 1985 From: Lee No , Commodity Futures Trading Comm n v. Weintraub (~,_,A<) QUESTION PRESENTED Does the trustee of a corporation in bankruptcy have the power to waive the debtor corporation's attorneyclient privilege? BACKGROUND Chicago Discount Commodity Brokers (CDCB) is a commodity brokerage house registered with the Commodity Futures Trading Comm n (Comm'n). On October 27, 1980, the.,

9 2. Comm'n filed a complaint in DC against CDCB alleging various violations of the Commodity Exchange Act. 7 u.s.c. 1 et seq. Frank McGhee, the sole director and officer of CDCB, entered into a consent decree with the Comm'n providing for the appointment of a receiver. About one week later, the receiver filed a voluntary petition in bankruptcy seeking 1 iquida tion under Chapter 7, 11 U.S.c. 761 et seq. 1 The receiver, John Notz, was made trustee of the debtor corporation's estate. Ewen after the bankruptcy petition was filed, the Comm'n continued its investigation of CDCB. On January 28, 1981, the Comm'n served an investigatory subpoena on CDCB's former counsel, Gary Weintraub. The Comm'n sought testimony about suspected fraudulent activities by CDCB' s officers and employees. Weintraub appeared for the deposition and responded to almost 800 questions. Weintraub refused to answer 23 questions, however, on the ground that to do so would violate CDCB's attorney-client privilege. The questions that Weintraub refused to answer concerned location of corporate funds, the identity of the persons who deposited corporate funds in Weintraub's personal trading account, the amount of customer equity, personal loans made to coroprate officers, and the corporation's policies about access to the corporate safe. 1 chapter 7 is the only bankruptcy avenue available to a commodity broker. 11 u.s.c. ' 109(d).

10 3. On December 15, 1981, the Comm'n filed this action in the DC for the N.D. Ill. to compel Weintraub to answer the questions as to which he had asserted CDCB's privilege. After determining that waiver of the privilege would be in the best interests of CDCB's estate, the trustee in bankruptcy waived the corporation's attorney-client privilege. On Apr~l 26, 1982, a magistrate granted the Commission's application for an order comnpelling Weintraub to answer the 23 questions. The magistrate found that the trustee had validly waived CDCB's privilege. &firmed the magistrate's order. 2 The DC CA7 reversed the judgment of the DC. It held that a bankruptcy trustee does not have the power to waive a corporate debtor's attorney-client privilege. The court of appeals gave three reasons for its holding: ( 1) permitting the trustee of a corporate debtor to waive the privilege would treat such debtors less favorably than individuals in bankruptcy; ( 2) permitting the bankruptcy trustee to waive the privilege would discriminate against corporations on the basis of economic status; and (3) allowing waivers by trustees would chill attorney-client communications. The CA recognized that its decision conflicted with Citibank, N.A. v. Andros, 666 F.2d 1192 (CA8 1981) 3 2 Although the action was brought against Weintraub, Frank McGhee and Andrew McGhee, a former director and officer of CDCB, were granted leave to intervene as defendants. Footnote(s) 3 will appear on following pages...

11 4. This Court granted a writ of certiorari in order to resolve the split in the circuits. DISCUSSION I. Section 542(e) of the Bankruptcy Code Section 542(e) of the Bankruptcy Code provides: Subject to any applicable privilege, after notice and a hearing, the court may order an attorney, accountant, or other person that holds recorded information, including books, documents, records, and papers, relating to the debtor's property or financial affairs, to disclose such recorded information to the trustee. 11 u.s. c. 542(e) (emphasis added). The respondents contend that this statutory provision was intended to prevent trustees in bankruptcy from obtaining information protected by the attorney-client privilege. According to respondents, if trustees are given the power to waive the corporate debtor's attorney-client privilege, thiscongressional intent will be frustrated. A look at the legislative history of 542(e) reveals that respondents' argument is meritless. Section 542(e) was designed to limit the ability 3 ca7 distinguished this case from In re O.P.M. Leasing Services, Inc., 670 F.2d 383 (1982), in which CA2 held that the trustee in bankruptcy could not waive the corporate debtor's privilege. In O.P.M. Leasing, the critical fact was that the corporate debtor had no board of directors. Under these circumstances, the power to exercise the corporation's privilege "adheres to the trustee by virtue of the nonexistence of any other entity authorized to so act." Here, of course, Frank McGhee continued as a director and officer even after the bankruptcy petition was filed.

12 5. of attorneys and others to withhold relevant information. 4 Collier on Bankruptcy ~ , at It was intended to preventlawyers and accountants from using state law liens to obtain payment ahead of other creditors by withholding documents necessary to the administration of the estate. S.Rep. No. 989, 95th Cong., 2d Sess, 84, reprinted in 1978 u.s. Code Cong. & Ad. News 5787, 5870; H.R. Rep No. 595, 95th Cong., 1st Sess , reprinted in 1978 u.s. Code Cong. & Ad. News 5963, There is nothing to suggest that Congress, in expanding the trustee's investigatory powers, intended to resolve questions as to the application of the attorney-client privilege. In fact, during the floor debates, proponents of the measure stated that "the extent to which the attorney-client privilege is valid against the trustee is unclear and is left to be determined by the courts on a case by case basis." 124 Cong. Rec. 33, 999 (statement of Sen. DeConcini); 124 Cong. Rec. 32,400 (statement of Rep. Edwards) Therefore, in deciding whether a trustee may waive the attorney-client privilege, one must look beyond the Bankruptcy Code for an answer. II. Trustee as Manager Theory Ordinarily, the power to waive a corporation's attorney-client privilege rest with its management (i.e., the board of directors). When control of a corporation passes to new management, control of the attorney-client privilege passes as well. Therefore, when new management

13 6. is installed as a result of a takeover, merger, change in shareholder composition, or other business development, the new managers may waive the attorney-client privilege with respect to communications made by former officers and directors. See, ~, United States v. Bartlett, 449 F.2d 700, 704 (8th Cir. 1971); cert. denied, 405 u.s. 932 (1972) 0 The SG contends that because the trustee in bankruptcy "manages" the debtor corporation, he should be allowed to waive its attorney-client privilege. The respondents agree that the "manager" of a corporation may waive the attorney-client privilege, but deny that the trustee fills this role. Therefore, the primary dispute in this case relates to the powers and duties of the trustee in bankruptcy. Because it appears that the trustee is in relevant respects indistinguishable manager, he should be allowed from a non-bankruptcy to waive a debtor corporation's attorney-client privilege. The powers of management, as defined by state law and most corporate charters, are extensive. It has complete control over the day-to-day operations of the corporation. See, ~, Del. Code Ann. tit. 8, 14l(a) (1983). It controls any litigation involving the corporation. Moreover, management is given authority to make many decisions outside the ordinary course of business, such as retiring shares of the corporation's stock. See, ~, Del. Code Ann. tit. 8, 243(a) (1983).

14 7. Along with this extensive grant of power, directors are under certain fiduciary duties, the most important of which is the duty to maximize the corporation's profits for the benefit of its shareholders. See, e.g., Dodge v. Ford Motor Co., 204 Mich. 459, 507, 170 N.W.2d 668, 684 (1919). The powers of the trustee in bankruptcy are strikingly similar to those of the corporation's management. The Code gives the trustee the authority to oversee all of the debtor's operations within "the ordinary course of business." See 11 u.s.c. 363(c) (1). Perhaps most relevant to the determination of who controls the attorney-client privilege is the trustee's power to commence litigation on behalf of the estate and to dictate the course of litigation pending at the time the bankruptcy petition is filed. See Bankr. R. 6009; 11 u.s.c. 323(b). The trustee may even terminate suits in which the expected return to the estate is less than the expected cost of litigation. See 2 Collier on Bankruptcy ~ The respondents contend that the "most glaring differenc[e] between bankruptcy trustees and nonbankruptcy management [is] whom they represent." There may be a distinction between the categories of investors to whom the directors and the trustee owe their primary duties. The fiduciary duties of corporate directors run to shareholders, not creditors. But see Superintendent of Insurance v. Bankers Life & Casualty Co., 404 u.s. 6, 12 (1971). The bankruptcy trustee, on the other hand, is most...

15 B. concerned about the creditors' rights. This distinction, however, is one of terminology rather than substance. The trustee has a duty to maximize the estate's assets. Nonbankrupcy management pursues this same goal when it attempts to maximize the return to the residual claimants of the enterprise, the shareholders. See Waiver of the Attorney-Client Privilege by a Trustee in Bankruptcy, 31 Chi. L. Rev., _ (1985) (forthcoming). 4 Because they have the same powers and duties as nonbankruptcy management, trustees should be allowed to waive the corporate debtor's attorney-client privilege. This holding will prevent corporate directors from filing for bankruptcy soley to avoid losing control of the company's attorney-client privilege. Cf. Butner v. United States, 440 u.s. 48 (1979) ("uniform treatment of property interests serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving 'a windfall merely by reason of the happenstance of bankruptcy. '") Moreover, giving the trustee the power to 4 There is another difference between corporate management and the trustee in bankruptcy. The Code requires that the trustee obtain court approval for the use, sale, or lease of estate property outside of the ordinary course of the debtor's business. 11 u.s.c. 363(b) (1). Corporate directors, of course, need not obtain such approval. This distinction, however, does not justify treating the trustee as something other than new management of the corporation. The trustee's actions are more closely scrutinized because after the bankruptcy petition is filed, the market no longer serves as a check on ineffective and inefficient management.....

16 9. waive the privilege will aid him in uncovering causes of action against the debtor's officers and directors. Particularly where the bankruptcy is precipitated by insider misconduct, such causes of action are important assets of the estate. See generally 11 u.s.c. 704(4), 547, 548. If former management controlled the attorneyclient privilege, they might assert the privilege so as to impede the recovery of assets that were wrongfully diverted or appropriated. See Securities and Exchange Commission Report on the Study and Investigation of the work, Activities, Personnel and Functions of Protective and Reorganization Committees, Pt. VIII, (1938) 5 III. Arguments Against Giving the Trustee the Power to Waive the Privilege CA7 made three primary arguments in support of its holding. They will be considered in order. CA7 first asserted that allowing the trustee in bankruptcy to waive the debtor's attorney-client privilege would discriminate among corporations on the basis of economic status. Solvent corporations would be allowed to assert or waive their rivileges by action of their elected 5 There certainly would be a conflict of interest in this case if corporate management, rather than the trustee, controlled the attorney-client privilege. Frank McGhee, the sole director and officer, was convicted in 1983 of embezzling $3.5 million in customer funds, in violation of Section 9(a) of the Commodity Exchange Act, 7 u.s.c. 13(a), and was sentenced to three years in prison. -,,,.....

17 10. officers while insolvent corporationis would be forced to bend to the will of the trustee. Implicit in this argument is the assumption that the trustee will exercise the debtor's attorney-client privilege to the detriment of the corporation, while the debtor's directors will not. This assumption, of course, ignores the duties placed upon the trustee. Because the trustee's duties are aligned with the interests of a corporate debtor's residual claimants, no "discrimination" against insolvent corporations would result from a rule that gives the trustee control over the attorney-client privilege. CA7 further found that a trustee in bankruptcy should not be allowed to waive a corporate debtor's attorney-client privilege because it would be "absurd" to permit a trustee to waive an individual's privilege. The problem with this rationale is that it assumes that individual '------~ -... when are reasons applying different rules in each case. Unlike an individual, a corporation is an artificial entity that can act only through its agents. The directors' control of a corporation's privilege rests solely on their relationship to the corporation. On the other hand, when an individual asserts his attorney-client privilege, he is asserting a privilege that is personal to him. Because directors who try to assert the corporation's attorney-client privilege occupy a different position vis-a-vis the holder of the

18 11. privilege than does the indivrdual asserting his own privilege, it might make a great deal of sense to treat corporate directors and individuals differently. Finally, CA7 found that allowing the trustee to waive a corporate debtor's attorney-client privilege would have a chilling effect on communications between corporate agents and attorneys. This argument, however, loses sight of the scope of the attorney-client privilege in the corporate context. The decision as to whether a corporation's privilege will be waived is left solely to its current management; the former directors cannot prevent the disclosure of information that was given to the corporation's counsel during their directorships. This rule certainly makes management reluctant to disclose to lawyers information that is personally incriminating. But it seems unlikely that allowing trustees in bankruptcy to waive the attorney-client privilege will add much to this existing disincentive to full disclosure. In sum, the chilling effect emphasized by CA7 is the result of the nonbankruptcy rule that that allows only the current agents of the corporation to waive the privilege. 6 RECOMMENDATION 6 An alternative argument advanced by the SG is that the attoney-client privilege passes to the trustee as property of the estate. This argument is not too persuasive, however, for the right to waive the attorney-client privilege cannot be bought, sold, or levied upon by creditors. ''

19 12. The judgment of CA7 should be reversed. The trustee in bankruptcy, because he manages the debtor corporation, should be allowed to waive its attorney-client privilege.

20 March 4, 1985 COMMOD GINA-POW MEMO TO FILE Commodity Futures Trading Commission v. Weintraub This case involves the bankruptcy of Chicago Discount Commodity Brokers, a corporation subject to the provisions of the Commodity Exchange Act and the Commodity Futures Trading Commission. The specific question in the case arises out of an investigation by the Commission to determine whether the bankrupt corporation engaged in certain fraudulent acts. The bankruptcy proceedings contemplates the liquidation under Subchapter IV of Chapter VII of the Bankruptcy Code, and John K. Notz was appointed trustee of the bankrupt estate. The Commission served an investigatory subpena on respondent, Gary Weintruab, former counsel to the bankrupt corporation. The Commission desired respondent's testimony about matters including the suspected fradulent activities. Respondent Weintraub appeared folr a deposition and responded to some 800 questions, but refused to answer 23 questions on the basis that he could rely on "attorney-client privilege". In other words, as I.....

21 2. understand it, the bankrupt corporation - prior to the bankruptcy - and Weintraub were in the relationship of client and attorney so that the corporation could claim the privilege with respect to confidential matters with its attorney. The question presented by the case before us, as stated in the petition for cert, is as follows: "Whether the trustee of a corporation in bankruptcy has the power to assert or waive the debtor corporation's attorney-client privilege with respect to communications that took place before the petition in bankruptcy was filed." It is apparently well-settled that the corporation itself could have asserted the privilege or elected to waive it. Moreover, the SG argues, apparently with considerable authority to support his position, that the management of a corporation - its board of directors - has the authority to assert or waive the corporate privilege, and that even officers individually ~ o such authority where the lawyer had been acting as counsel for the corporation itself. The District Court held that the trustee in bankruptcy took the place of the corporate management and had the authority to waive the privilege. The Court of

22 3. Appeals for the Seventh Circuit, took a different view, and held "that the trustee in bankruptcy of a corporate debtor does not have the power to waive the corporation's attorney-client privilege as to any communication occuring or arising on or before the date the petition in bankruptcy was filed." This decision of CA7 conflicts with a decision of CA8 on the same issue, and presumably we granted the case to resolve the conflict. The Court of Appeals here found nothing in the Bankruptcy Code that authorizes the trustee to waive or assert the privilege. The trustee under the Code does not replace the corporation, and to permit waiver by the trustee would in effect discriminate against bankrupt corporations as compared to solvent corporations. Presumably, in this case, in the absence of the bankruptcy the corporation itself in a fraud investigation could have claimed the privilege. The Court of Appeals therefore seems to have a good point in saying that the trustee who was not a party to the transactions in which the attorneyclient r~lationship existed, had no right to give a waiver that the corporation itself absent the bankruptcy - would have been unwilling to give. ;.

23 4. The government's argument is based primarily on a "management" theory: that is, the trustee in bankruptcy takes title to the property of the debtor, and makes the decisions that management would have made if it had continued in control of the business. One of the decisions is whether or not to assert or waive the attorney-client privilege. This is not an area of the law in which I have any expertise or any great interest. I am inclined - very tentatively - to think that CA7 has the better reasoning at least theoretically. On the other hand, as a practical matter, a good deal of fraud could be covered up if the trustee of a bankrupt corporation lacked authority to waive the attorney-client privilege with respect to confidential matters that had occurred prior to the bankruptcy. The SG's brief cites In re O.P.M. Leasing Services, Inc., 670 F.2d 383, CA2 (1982) as holding that the trustee of a corporation undergoing reorganization pursuant Chapter XI of the Bankruptcy Code could waive to the corporation's attorney-client privilege. I have not looked at CA2's opinion. I would like a brief, summary memo from my clerk. As presently disposed, I would not

24 5. dissent from an opinion affirming or reversing CA7. The issue is hardly one of national importance. We need to resolve the conflict. LFP, JR. '.oill <..,.

25 rommoditv FuturPs v. Weintraub Dea! Thurqoo~: Pleaqe a~~ ~t t~e en~ o~ the next draft of vo~r opinion that I took no part in the conafder~tinn of. this c~se. ~fncerelv, or ~ecision Justice Marshall lfo/sc cc: ~he ~onfer~nce

26 CHAMSER8 0,...JUSTICE w....j. BRENNAN,..JR. April 25, 1985 No Commodity Futures Trading Commission v. Weintraub, et al. Dear Thurgood, I agree. Sincerely, 1 ~ ~~ I. Justice Marshall Copies to the Conference

27 upr.tnu Qf~turl ~tf tltt ~itt~.itatt ~ujringhtn. ~. <If. 21lp~~ CH... BERS OF" JUSTICE JOHN PAUL STEVENS April 25, 1985 Re: Commodity Futures Trading Comm'n v. Weintraub Dear Thurgood: Please join me. Sincerely, Justice Marshall Copies to the Conference

28 ,nvrtntt Qflmrt Df t4t 1tnittb,talt.s JI~lfi:qton, ~. Of. 2ll~,.~ CHAMBERS OF" JUSTICE SANDRA DAY O'CONNOR April 25, 1985 Re: Commodity Futures Trading Commission v. Gary Weintraub, et al. Dear Thurgood, Please join me. Sincerely, Justice Marshall Copies to the Conference

29 ..6u.prtm:t Clfo-urt qf tift ~tb..6tau.. ulfinghm. ~. <!f. 2llp'!~ CHAMBERS OF"..JUSTICE WILLIAM H. REHNQUIST April 25, 1985 Re: Commodity Futures Trading Commission v. Weintraub Dear Thurgood: Please join me. Sincerely,~ Justice Marshall cc: The Conference

30 ~tutt QfDUrl of tlft ~b.. htttg._-uftin.gton. ~. Of. 21Tbi'l~ CHAMeERS OF.JUSTICE HARRY A. BLACKMUN April 25, 1985 Re: No , Commodity Futures v. Weintraub Dear Thurgood: Please join me. Sincerely, 1'-t. -- Justice Marshall cc: The Conference

31 n:prtntt Qiourt of tqt ~tb.tta.u Jlufringhm. ~. QI. 2ll.;t'!~ CHAMBERS 01'.JUSTICE BYRON R. WHITE April 25, CFTC v. Weintraub Dear. Thurgood, i Please join me. Sincerely yours, Justice Marshall Copies to the Conference

32 .juprtmt <!fdurt of tltt ~b.i\udte '~lhts Jrhtghtn. ~. <!f. 211~'1-~ CHAMI!IERS OF THE CHIEF JUSTICE April 26, 1985 RE: Commodity Futures Trading Commission v. Weintraub Dear Thurgood: I join. I Justice Marshall Copies to the Conference,.

33 Commodity Futures v. Weintraub (Lee) LFP out - letter 3/24/85 TM for the Court 4/l/85 1st draft 4/24/85 Joined by SOC 4/25/85 JPS 4/25/85 TM 4/25/85 BRW 4/25/85 HAB 4/26/85 WHR 4/26/85 CJ 4/26/85