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August 31, 1949
Members of the Board

Transamerica

Mr. Vardaman
CONFIDENTIAL
A f t e r 8 c a r e f u l study of respondent's exception and appeal from
the r u l e of the Hearing O f f i c e r denying respondent's motion t o dismiss,
and the b r i e f f i l e d i n support of t h a t exception, I am more convinced
than ever t h a t the Board should hear en banc respondent's motion t o d i s miss and decide the question en banc, r a t h e r than r e f e r i t to the Hearing
O f f i c e r . I was of t h i s opinion a t the time the matter vas discussed and
acted upon by the Board on J u l y 19, and you may r e c a l l t h a t I urged the
Board then t o consider the motion en banc.
I nov urge the Board members t o consider the a d v i s a b i l i t y of
reversing the previous a c t i o n of the Board on t h i s question, end of cons i d e r i n g t h i s exception and appeal, and hearing o r a l arguments, en banc.
I f e e l s t r o n g l y t h a t the Hearing O f f i c e r , by ordering the r e opening of the hearings on September 19, does not allow a. f a i r and s u f f i c i e n t time t o the respondent company; and "when t h i s matter i s considered
by the Board, I intend t o urge t h a t a t l e a s t three or possibly four
months a d d i t i o n a l time be granted by the Board from September 19.
Aside from the f a c t t h a t I t h i n k respondent vould be e n t i t l e d
t o , c o n s i d e r a b l y more time than alloved by the Hearing O f f i c e r even under
ordinary circumstances, the f a c t t h a t respondent has l o s t by sudden
death one of i t s p r i n c i p a l defense vitnesses undoubtedly m i t i g a t e s against
the respondent. Obviously, considerable a d d i t i o n a l research, examination
of records, and other work v i l l be necessary on the p a r t of the respond e n t ' s attorneys t o prepare and piece together the substance of evidence
v h i c h could probably have been given on a few moments notice by Mr. A. P.
G i a n n i n i , had he l i v e d .
I ' s e e no harm t h a t could be done the Board's, case by allowing
respondent a d d i t i o n a l time; and I t h i n k the request i s reasonable and
should be granted.
I d i d not dissent from the m a j o r i t y opinion of the Board on
J u l y 19 vhen i t declined t o consider the motion t o dismiss and r e f e r r e d
the motion t o the Hearing O f f i c e r , because a t t h a t time I understood t h a t
such procedure had been recommended by the Board's Special Counsel.
I
l a t e r learned t h a t such vas not the case and t h a t Special Counsel had not
been requested t o pass upon the a d v i s a b i l i t y o f such procedure, but had
simply been asked whether or not such procedure was possible and l e g a l .




- 2 My present f e e l i n g i s t h a t I w i l l have t o dissent i f the Board
refuses t o hear en banc respondent's present motion, and I w i l l ask t h a t
my dissent be noted on the record and the r u l i n g .

CC - Mr.
Mr.
Mr.
Mr.

Vest
Smith
Thurston
Morrill




-3-

Res i n d e n t ' s recuest f o r an adjournment of the heering date
prescribed ty the Hearing O f f i c e r i n h i s Motice denying respondent's
motion to dismiss f o r f a i l u r e of proof be, and i t hereby i s , denied.
This

dsy of

, 1949.

By the board.

3. f . Carpenter,
Secretary.
(SFAL)

Governor Vardaman dissents.

I n h i s opinion, respondent's

exception and appeal should be allowed, and the Board i t s e l f should
hear and determine respondent's motion to dismiss f o r f a i l u r e of
proof.

Governor Vard^asn i s slso o f the opinion t h a t , respondent's

exception and appeal having been dismissed, respondent's recuest f o r
an adjournment o f the hearings should be granted t o the extent o f
adjourning or continuing the hearings to a .date not e a r l i e r than
s i x t y days subsequent to September 19, 1949, the date f i x e d by the
Hearing O f f i c e r f o r the resumption o f the hearings.
Governors Fecles and Clayton took no part i n the considerstion
or d e c i s i o n o f the exception, appeal and recuest r e f e r : e d to i n the
foregoing statement and o r d e r .