The opinion of the court was delivered by: Bauer, District Judge.
This cause comes before the Court on plaintiffs' motion for
a summary judgment.
This action arises under the Savings and Loan Association
Act, 12 U.S.C. § 1464. The matter in controvery exceeds the sum
of $10,000 exclusive of interest and costs. Jurisdiction of
this Court is allegedly invoked pursuant to 28 U.S.C. § 1331
This is an action seeking declaratory and injunctive relief
based on defendants' alleged unlawful practices which have
denied plaintiffs access to the membership list of defendant
Savings and Loan Association.
Previously, on February 15, 1974, this Court issued a
Memorandum Opinion and Order denying plaintiffs' motion for a
preliminary injunction. Subsequently, plaintiffs have amended
their complaint and they now seek an order to permit
plaintiffs and a reasonable number of their agents to inspect
and copy the list of all the present members of Republic
Federal Savings and Loan Association entitled to vote at any
special meeting which may be called and at the March, 1975
Each of the plaintiffs is a member of the defendant Republic
Federal Savings and Loan Association ("Republic Federal") by
reason of being a holder of a savings account of Republic
Federal. The plaintiffs are allegedly the holders of more than
$10,000 of withdrawal value of savings accounts in Republic
The defendant, Republic Federal, is a federal savings and
loan association organized and chartered under 12 U.S.C. § 1464
having its office in Chicago, Illinois.
It is well settled that a member of a federal savings and
loan association who holds a savings account has a right to
inspect or copy a list of membership in order to solicit their
votes for election of directors. Murphy v. Colonial Federal
Savings & Loan Association, 388 F.2d 609 (2nd Cir. 1967);
Durnin v. Allentown Federal Savings & Loan Association,
218 F. Supp. 716 (E.D.Pa. 1963); Ochs v. Washington Heights Federal
Savings & Loan Association, 17 N.Y.2d 82, 268 N.Y.S.2d 294,
215 N.E.2d 458, (1966). In their original complaint the
plaintiffs requested that they be provided with a list of the
members who are entitled to vote by Republic Federal. The
amended complaint merely requests that they be given the right
to inspect and copy the membership list.
The Court is unaware of any authority which states that the
Federal Home Loan Bank Board's Regulation 544.6(g) preempts
the federal common law. If the Federal Home Loan Bank Board
had wished to suggest that its new form bylaw provided the
exclusive rights to members wishing to communicate with other
members, when these rights were quite different and far
narrower than the right of a "reasonable opportunity to
ascertain the names and addresses of electors known to the
management," as described in Murphy, 388 F.2d at 612, it simply
would have stated so.
Plaintiffs have investigated the possibility of complying
with bylaw (g) and have found that said compliance would be
too costly and would not effectively convey their position to
their fellow members. Even assuming that the cost of a mailing
was reasonable, plaintiffs' message cannot be as effectively
conveyed in writing as it could be in face to face
conversations. Bylaw (g) should not be construed as to
abrogate plaintiffs' rights to communicate with other members
of the savings and loan institution.
Plaintiffs, Stephen P. Kupiec and John E. Cihocki, intend to
nominate a member of Republic Federal for the post of
Director, at future annual meetings of the association and to
solicit votes for that nominee before these meetings. Any
effort to nominate and elect a Director would be severely
impeded should they be denied an opportunity to copy the names
and addresses of members of the association who would be
entitled to vote for the office of Director at the meetings.
The New York Court of Appeals, in Ochs v. Washington Heights
Federal Savings and Loan Association, supra, stated
"Without the right to inspect merely the
membership list of the association, how can a
member in good standing, motivated by the utmost
of good intentions, effectively exercise his
statutory right to partake in the management of
the association, to vote in a most prudent
manner, to effectuate his right to have his
candidate for a directorship elected by proxy,
and to at least apprise his fellow members of
circumstances which in his opinion are crucial to
their voting prudently and wisely? Without this
common-law right his statutory rights under the
charter of the association are indeed `idle
Also, in Murphy v. Colonial Federal Savings and Loan
Association, supra, Judge Friendly found that, as a practical
matter, the question was free from doubt:
"[T]he district court was plainly right in
holding that an election of directors in which
the opposition is deprived of any reasonable
opportunity to ascertain the names and addresses
of electors known to the management was unfair
under federal law . . ." 388 F.2d at 612.
The defendants have also challenged the jurisdiction of the
Court which is invoked under § 1331(a) and § 1337 of Title 28
of the United States Code. Section 1337 provides:
"The district courts shall have original
jurisdiction of any civil action or proceeding
arising under any Act of Congress regulating
commerce or protecting trade and commerce against
restraints and monopolies."
However, a number of federal statutes recently have been held
to be acts regulating commerce for the purposes of § 1337
jurisdiction. See Federal Consumer Credit Act, Sosa v. Fite,
465 F.2d 1227 (5th Cir. 1972); National Housing Act, Davis v.
Romney, 355 F. Supp. 29 (E.D.Pa. 1973); Food Stamp Act, Moreno
v. United States, 345 F. Supp. 310 (D.D.C. 1972); National
School Lunch Act, Marquez v. Harden, 339 F. Supp. 1364 (N.D.Cal.
1969); Federal Communications Act, Post v. Payton, 323 F. Supp. 799
(E.D.N.Y. 1971); and the National Traffic and Motor Vehicle
Safety Act, Chrysler Corp. v. Malloy, 294 F. Supp. 524 (D.Vt.
1968). In addition, the Second, Eighth and Fifth Circuits have
all applied the Murphy precedent in finding § 1337 jurisdiction
in suits brought under the National Banking Act. Cupo v.
Community National Bank and Trust Company, 438 F.2d 108 2d 1971
); Burns v. American National Bank, 479 F.2d 26 (8th Cir.
1973); Partain v. First National Bank of Montgomery,
467 F.2d 167 (5th Cir. 1972).
The Court is aware of the potential for abuse in allowing
the list to be