The Film Daily (1935)

Saturday, Oct. 26, 1935 CONCLUDE DISMISSAL ARGUMENTS TODAY (Continued from Page 1) ng to the government's arguments nade yesterday by Dwight L. Savage and Russell Hardy, special issistants to the Attorney General, n the morning William R. Gentry or the Paramount vice-president and general manager, and George S. leisure on behalf of RKO Distribuing Corp. and Ned E. Depinet had )leaded with the court on behalf if the defendants' motions, contendng that the government had failed o prove a prima facie case of conspiracy in restraint of interstate rade and commerce and urging fudge Moore to direct the jury to ind for the defendants. While Leisure was presenting his argument n unfortunate incident occurred that comelled Judge Moore to assess a fine of $25 or contempt of court against Harold L. ichlitz of government counsel. Schlitz, withut rising from his chair, shouted "That's damn lie," when Leisure stated that the overnment had failed to return a carbon copy f an RKO letter that had been used before he Federal Grand Jury last January. Judge Moore directed Schlitz to arise and pologize to the court, which he did, and then ssessed the fine. Later Leisure and other lefendant counsel led by James A. Reed, ought to have Judge Moore remit the fine as t would be a "blot on the career of a young awyer" but the court said that the fine vould not be remitted, as the court could lot tolerate such conduct on the part of in attorney. Gentry, Fordyce and Leisure did not go o thoroughly into the law coveringthe various ihases of the case as did Frederick H. Wood )f Warner counsel Thursday. Explaining :hat they could not add anything to that irery able discussion of the law generally ipplicable, but instead particularized with the lituation as it covered the interests of their >wn clients. Savage, lacking the oratorical ability of Wood, presented a very thorough discussion )f the Sherman and Clayton Acts in their •elationship to the case at bar, citing numerius court decisions to support his chief con:ention that the fundamental purpose of the aw is to secure equality of opportunity to :very individual engaged in interstate commerce and to prevent the evil effects of any :ombination or monopoly that might interfere with such opportunity. He said that the :ourts have repeatedly stressed the fact that acts which in an individual acting independently may be perfectly legal and harmless may become illegal when he acts in concert Dr confederation with others. To cover the situation he purposely selected a number of motion picture cases and confined himself very largely to legal actions that had their locale in the St. Louis district. Answering a contention of defendant counsel that Paramount and RKO pictures had been shown in St. Louis despite the alleged conspiracy, he said that the Sherman Act was not concerned whether the same volume of commerce flows as before the conspiracy took place but is concerned with whether there is any interference with the activity of a person engaged in such commerce. He contended also that the law is not interested in any circumstances that may cause a combination of persons to do certain things, but in what they did. He said that the law sets up the measure of what is right and wrong and that it is then up to the judge and jury to determine whether there are certain mitigation circumstances to limit the punishment for a violation of the law. He added there is no defense whatsoever when two or more persons engage in an act that tends to restrain or limit interstate commerce. Answering Wood's contention of Thursday that the Schechter case, the most recent ruling of the United States Supreme Court, had shown that the fact that an article may have been incidentally a part of interstate commerce was not sufficient to bring an action under Federal statute. Savage said that a contract signed in New York fcr motion pictures to be shown in St. Louis was clearly interstate commerce. He said also that a conspiracy is rarely susceptible of proof by direct testimony but of necessity must be • • • THE DEPARTURE of Dave Loew to the Hal Roach studios is complicated by a two-year lease on his palatial duplex terraced apartment at the Beresford Loew signed up for the apartment while the building was in course of construction and the two floors were built entirely according to his own plan over $100,000 went into carved wooden walls and special decorations which all becomes a total loss on his removal even if the interior decorations were removed, they would be of inconsequential value in contrast to the cost of their installation T ▼ T • • • THAT BIG farewell dinner to Dave at the WaldorfAstoria next Tuesday has been planned to please all those who like a few interesting talks by capable after-dinner speakers may sit back and enjoy them those not interested in speeches can by that time sink back into happy oblivion for the supply of liquid nourishment will guarantee that this is what you might call the perfect banquet arrangement T T T • • «THE OPENING of "Play, Genius, Play" will be Wednesday eve instead of Tuesday, at the St. James theater Mervyn and Doris LeRoy are financing it Lou Cline, formerly with Paramount, is handling publicity on the show Very clever broadside on current product of the company has been turned out by the United Artists' ad dep't a revolving cardboard wheel with the pix names listed in alternate red and black disks like a roulette wheel, with an arrow on the backing board and the catch line: "Wherever the wheel stops, you've picked a Winner!" the reverse of the broadside mounted on a heavy board has a square peep-hole with the line: "Watch the hits go by" WARNER OPERATIONS TO SHOW A PROFIT Korda Signs Style Authority London — Rene Hubert, noted fashion authority, has been engaged by Alexander Korda as head of the costume department at the nearlycompleted London Films studios in Denham. Korda productions are released through United Artists. Third Week for "Shipmates" "Shipmates Forever," First National release, will be held at the New York Strand for a third week. shown or inferred from circumstances such as acts done. Hardy in opening said that his clients were not Fanchon & Marco and the Bondholders' Protective Committee but the government of the United States and that the gentleman that had figured in the situation in opposition to Warner Bros, were merely government witnesses. Then, with picturesque adjectives that carried him all the way from China to the diamond fields of South Africa with a stop-over in Ethiopia to predict the outcome of the Italian invasion of the domain, he proceeded to analyze the testimony that had been given against the various defendants, both corporate and individual, to support his contention that nothing they did in furtherance of the alleged combination against Fanchon & Marco and the Bondholders' Protective Committee and even the United States District Court for the Eastern District of Missouri, could support any presumption of innocence. He touched on the size and power of Warner Bros, and the comparative smallness of Fanchon & Marco to prove his contention that Warner Bros, had not only made the threats credited to them but were able to carry through such threats. Should Judge Moore overrule the defense motions the trial will be resumed Monday morning. There is an outside chance that defense counsel may decide to permit the case to go to the jury without presenting any defense witnesses. However, that is a detail that has not been finally worked out. Heretofore it had been estimated that defense testimony might take two or more weeks. Cleve. "Top Hat" Action Up for Hearing Monday (Continued from Page 1) tors seeking to have "Top Hat" delivered on 1934-35 contracts will be held Monday morning before Federal Judge Paul Jones. Jerome Friedlander filed the action on behalf of the Broadvue, Ridge, Doan and Cedar Lee Theaters. Squires, Saunders & Dempsey are attorneys for RKO. Foreign Flashes Oslo — A 1 per cent tax on admissions, to provide funds for a native production concern, is planned by the Federation of municipal cinemas. Paris — Louis Lumiere's 40th jubilee will be celebrated Nov. 6-8 at the Sorbonne under the Minister of Education. Rome — Importers investing half of their earnings in native pictures will receive a 50 per cent cut in dubbing tax under the new government regulations. For each Italian production made here, producers are entitled to five dubbed films free of tax. Two-thirds of the movie taxes will be used in developing native production. London — Cinema owners are requesting a 10 per cent quota of British films. The 20 per cent quota which went into effect this month is to run until September, 1938. (Continued from Page 1) $2,530,513.68. The letter to stockholders lists various matters to come up at the meeting, as follows: At this meeting six directors, constituting a majority of the Board of Directors, are to be elected by the preferred stockholders. Pursuant to the provisions of the Certificate of Incorporation, the voting power for the election of a majority of the Board of Directors is at present vested in the preferred stock. The directors whose terms of office now expire, are: Harry M. Warner, Albert Warner, Jack L. Warner, Abel Cary Thomas, Waddill Catchings and Henry A. Rudkin. The Board of Directors will also ask you to approve their action in compromising and settling all controversies between the Corporation on the one hand, and Renraw, Inc., Harry M. Warner, Albert Warner and Jack L. Warner on the other, arising out of or relating to an agreement between the parties dated as of September 1, 1928, and its amendments and modifications (hereinafter referred to as "the employment contract"). The employment contract, under which the Messrs. Warner have performed their services for the period of six years, provided, among other things, for a weekly cash salary, and for the issuance of 90,000 shares of the Corporation's common stock which was delivered in instalments during the term of the contract. The Corporation, in June, 1929, split each share of its common stock into two shares. Minority stockholders' suits had been instituted for the alleged benefit of the Corporation, against Messrs. Warner and Renraw, Inc. and several of the directors, in which suits, among other things, certain legal questions were raised and liabilities asserted by reason of the making and performance of the employment contract. The Board of Directors, believing that the continuance of a controversy between the Corporation and the Messrs. Warner, its principal officers, arising out of the employment contract was detrimental to the best interests of the Corporation, sought the advice of the law firm of Davis, Polk, Wardwell, Gardiner and Reed, of New York City, which law firm had never previously represented or advised the Corporation or Messrs. Warner or Renraw, Inc. This law firm after full consideration of all the facts submitted to them, recommended that the Corporation, if possible, negotiate a settlement of all claims arising out of the employment contract. Upon receipt of this recommendation and after due consideration, the Board of Directors authorized Messrs. Davis, Polk, Wardwell, Gardiner and Reed to negotiate the settlement advised by them. The Messrs. Warner and Renraw, Inc. at all times have steadfastly denied any liability on their part. However, they also recognized the desirability of reaching an accord with the Corporation in respect to the controversies arising out of the employment contract and therefore consented to negotiate a compromise and settlement thereof. The settlement as finally negotiated provided (1) that Messrs. Warner and Renraw, Inc. deliver to the Corporation 100,000 shares of its common stock, (2) that the Messrs. Warner and Renraw, Inc., release the Corporation from all claims based upon, related to or arising out of the employment contract, including all claims against the Corporation by reason of the non-payment of part of the cash compensation payable to them under the employment contract, (3) that the Corporation release the Messrs. Warner and Renraw, Inc. from all claims based upon, related to or arising out of the employment contract, and (4) that the Messrs. Warner and Renraw, Inc pay the costs and fixoenses of the plaintiff, Max Goldberg, in his minority stockholder's suit. This settlement has been fully executed, and such stockholder's suit has been discontinued, since which time, however, additional suits of a similar nature have been brought. M-G-M Gets Two Novels Deals for two new novels, "It Can't Happen Here," by Sinclair Lewis, and "Vein of Iron," by Ellen Glasgow, have been closed by M-G-M