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RADZANOWER v. TOUCHE ROSS & CO. ET AL. *FN*

June 7, 1976

RADZANOWER
v.
TOUCHE ROSS & CO. ET AL.*FN*



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Author: Stewart

[ 426 U.S. Page 149]

 MR. JUSTICE STEWART delivered the opinion of the Court.

This case requires us to determine which venue provision controls in the event a national banking association is sued in a federal court for allegedly violating the Securities Exchange Act of 1934: the broad venue provision of the Securities Exchange Act, which allows suits under that Act to be brought in any district where the defendant may be found, or the narrow venue provision of the National Bank Act, which allows national

[ 426 U.S. Page 150]

     banking associations to be sued only in the district where they are established.

The petitioner, Hyman Radzanower, instituted a class action in the District Court for the Southern District of New York alleging, inter alia, that the respondent, First National Bank of Boston, a national banking association with its principal office in Boston, Mass., had violated the federal securities laws by failing to disclose to the Securities and Exchange Commission and the investing public its knowledge of certain adverse financial information about one of its customers, the TelePrompter Corporation, and of securities laws violations by that company. The complaint alleged that venue was proper under § 27 of the Securities Exchange Act of 1934, 48 Stat. 902, 15 U.S.C. § 78aa, which provides that "[a] ny suit or action to enforce any liability or duty created [by or under the Securities Exchange Act]... may be brought in any such district [wherein any act or transaction constituting the violation occurred] or in the district wherein the defendant is found or is an inhabitant or transacts business...." The bank moved to dismiss the complaint as to it, asserting that venue as to it lay only under the venue provision of the National Bank Act, Rev. Stat. § 5198 (1878), 12 U.S.C. § 94. That section provides that "[a] ctions and proceedings against any [national banking] association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established...."*fn1

[ 426 U.S. Page 151]

     Following the settled law of the Second Circuit, the District Court granted the bank's motion to dismiss. It held that "[a] bsent waiver or consent, a national bank may be sued only in the district in which it is established. 12 U.S.C. Section 94." The court noted that the bank was established in Boston "because its charter specifies Boston as its principal place of business,"*fn2 and it rejected the petitioner's claim that the bank had waived the provisions of § 94.*fn3 The Court of Appeals affirmed without opinion.*fn4 Because of differing views in the Circuits as to the statutory venue question presented,*fn5 we granted the petition for certiorari. 423 U.S. 911.

[ 426 U.S. Page 152]

     Section 94 provides that suits against a national banking association "may be had" in the federal district court for the district where such association is established. The Court has held that this grant of venue is mandatory and exclusive: "The phrase 'suits... may be had' was, in every respect, appropriate language for the purpose of specifying the precise courts in which Congress consented to have national banks subject to suit and we believe Congress intended that in those courts alone could a national bank be sued against its will." Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 560. Accord, Michigan Nat. Bank v. Robertson, 372 U.S. 591; National Bank v. Associates of Obstetrics, 425 U.S. 460.*fn6 The venue provision of the Securities Exchange Act, by contrast, allows suits under that Act to be brought anywhere that the Act is violated or a defendant does business or can otherwise be found. It is the petitioner's contention that when a national bank is named as a defendant in a suit brought under the Securities Exchange Act, it loses the protection of the venue provisions of § 94 and may be sued in any federal judicial district where that Act was violated or where it does

[ 426 U.S. Page 153]

     business or can be found. For the reasons that follow, we cannot accept that contention.

It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum. "Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment." Morton v. Mancari, 417 U.S. 535, 550-551.*fn7 "The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all." T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 98 (2d ed. 1874).*fn8

When Congress enacted the narrow venue provisions of the National Bank Act, it was focusing on the particularized problems of national banks that might be sued in the state or federal courts. When, 70 years later,

[ 426 U.S. Page 154]

     Congress enacted the Securities Exchange Act, its focus was on the objective of promoting fair dealing in the securities markets, and it enacted a general venue provision applicable to the broad universe of potential defendants subject to the prohibitions of that Act. Thus, unless a "clear intention otherwise" can be discerned, the principle of statutory construction discussed above counsels that the specific venue provisions of § 94 are applicable to the respondent bank in this case. Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222.

The issue thus boils down to whether a "clear intention otherwise" can be discovered - whether, in short, it can be fairly concluded that the venue provision of the Securities Exchange Act operated as a pro tanto repeal of § 94. "It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored." ...


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