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

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 75-268. Argued March 30, 1976-Decided June 7, 1976

Venue in a suit against a national banking association charged with violating the Securities Exchange Act of 1934 held to be governed by the venue provision of the National Bank Act, 12 U. S. C. § 94, which provides that an action against a national banking association may be had in any federal district court within the district in which such association may be established, rather than by § 27 of the Securities Exchange Act, which provides that any action to enforce any liability or duty under that Act may be brought in any district where the violation occurred or in the district wherein the defendant is found or transacts business. Pp. 152–158.

(a) Under a basic principle of statutory construction, "[w]here 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. Pp. 153-154.

(b) A pro tanto repeal of § 94 by implication is not indicated on the ground that the two Acts are irreconcilable, since the underlying purpose of the Securities Exchange Act (enacted 70 years after the National Bank Act) was, not to regulate the activities of national banks as such, but to promote fair dealing on the securities markets; and the broad § 27 venue provision was intended to further that goal by enabling enforcement suits to be brought wherever a defendant could be found, whereas the narrow § 94 venue provision was intended for the convenience of banking institutions, and to prevent interruption of their business that might result from their books being sent great distances. In the very few instances where actions for securities violations are brought against banking institutions the requirement that suit be

*[REPORTER'S NOTE: This case was docketed under the caption shown. However, the respondent is the First National Bank of Boston. Touche Ross & Co. and others besides the bank, though parties defendant, were not parties to the proceeding in the Court of Appeals and are not respondents in this Court.]

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Opinion of the Court

brought where the defendant is established is no insurmountable burden. Pp. 154-157.

(c) Nor is repeal of § 94 to be implied on the ground that the later securities statute covers the whole subject of the earlier bank statute. The subjects covered by the two statutes are wholly different, and nothing in the legislative history of the securities statute manifests an intention to pro tanto repeal § 94. Pp. 157-158.

516 F. 2d 896, affirmed.

STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 158.

Ira Jay Sands argued the cause for petitioners. With him on the briefs was Samuel Gottlieb.

Samuel E. Gates argued the cause for respondent. With him on the briefs was Richard I. Janvey.†

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

+David Ferber and David J. Romanski filed a brief for the Securities and Exchange Commission as amicus curiae urging reversal.

Briefs of amici curiae urging affirmance were filed by C. Westbrook Murphy for the Comptroller of the Currency; by William Eldred Jackson and Briscoe R. Smith for the Chase Manhattan Bank; and by Donald J. Yellon and William B. Davenport for the First National Bank of Chicago.

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

"1

1 Section 94 in its entirety reads:

"Actions and proceedings against any 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, or in any State, county, or municipal court in the county

148

Opinion of the Court

2

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," and it rejected the petitioner's claim that the bank had waived the provisions of § 94.3 The Court of Appeals affirmed without opinion. Because of differing views in the Circuits as to the statutory venue question presented, we granted the petition for certiorari. 423 U. S. 911.

or city in which said association is located having jurisdiction in similar cases."

2 The petitioner does not claim that the bank is "established" anywhere else than in Boston. Federal courts have consistently ruled that the place specified in a bank's charter as its home office is determinative of the district in which the bank is "established" for purposes of § 94. See, e. g., Buffum v. Chase Nat. Bank, 192 F. 2d 58, 60 (CA7); Leonardi v. Chase Nat. Bank, 81 F. 2d 19, 22 (CA2).

The opinion of the District Court is unreported.

It has long been settled that the restrictive venue provisions of § 94 can be waived by a defendant bank. See, e. g., Charlotte Nat. Bank v. Morgan, 132 U. S. 141, 145; Michigan Nat. Bank v. Robertson, 372 U. S. 591, 594; National Bank v. Associates of Obstetrics, 425 U. S. 460.

Although the parties each devoted a portion of their briefs to the waiver issue, that issue was not raised in the petition for certiorari. Since we consider "[o]nly the questions set forth in the petition or fairly comprised therein," this Court's Rule 23 (1) (c), we have no occasion to pass on the correctness of the decisions below on the waiver question.

• The judgment of the Court of Appeals is reported at 516 F. 2d 896.

5 The Second and Ninth Circuits have concluded that § 94 is the exclusive venue provision governing suits against national banking associations, while the Third Circuit has ruled that such suits may

Opinion of the Court

426 U.S.

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.o 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

also be brought pursuant to § 27 of the Securities Exchange Act. Compare Bruns, Nordeman & Co. v. American Nat. Bank, 394 F. 2d 300 (CA2), and United States Nat. Bank v. Hill, 434 F. 2d 1019 (CA9), with Ronson Corp. v. Liquifin Aktiengesellschaft, 483 F. 2d 852 (CA3).

• When the Langdeau Court held that the words "may be had" serve to provide mandatory and exclusive venue, it was dealing with the relationship of § 94 to a state venue statute. Since the same words are used in connection with the federal-court venue provision, the same construction is virtually inescapable. "[I]t would indeed strain language to say that the same verbs were merely permissive with respect to suits in federal courts although prohibitory as to actions in state ones." Bruns, Nordeman & Co. v. American Nat. Bank, supra, at 303.