5391. Orgone Energy Accumulators.   (Inj. No. 261.)
COMPLAINT FOR INJUNCTION FILED: 2-10-54, Dist. Maine, against Wilhelm
Reich Foundation, a corporation, Rangeley, Maine, Wilhelm Reich, an indi-
vidual, and Use Ollendorff, also known as Mrs. Wilhelm Reich, to enjoin the
defendants (1) against causing the introduction and delivery for introduction
into interstate commerce of devices known as Orgone Energy Accumulators
and adulterated and misbranded as described below and (2) against causing
such devices to be adulterated and misbranded while held for sale after
shipment in interstate commerce.
NATURE OF DEVICE : The complaint alleged that the Orgone Energy Accumu-
lator devices were available in several styles and models, such as:
(1) The box-style Orgone Energy Accumulator which was designed to
stand upright and was large enough to permit an adult to sit inside.
The height, width, and depth were several inches less than those of an
ordinary telephone booth. The top, bottom, sides, and door were con-
structed with alternating layers of organic and metallic material- The
outer layer was of Celotex or plywood, then alternating layers of steel
wool and rock or glass wool, with the inside layer of galvanized she?t
metal or plastic wire mesh. The door was hinged to one side and usually
had an open window or portions cut out at the top and bottom for ventila-
tion. There was a two-section removable seat also made in layers. A
small section was cut out at a corner of the seat for the insertion of
a length of B-X type cable, into the other end of which a funnel could
be placed. The drop section might be used as a chestboard by placing
it upright in front of the chest of the person sitting in the box; chest-
boards were also made and sold separately. A device with six layers was
called a three-fold Orgone Energy Accumulator; one with two additional
layers was called four-fold, and so on;
(2)?The "Shooter" type Orgone Energy Accumulator which was a
box approximately one cubic foot in size, all sides of which were made
in the manner described above;
(3)?The blanket style Orgone Energy Accumulator which was con-
structed of wire mesh, with several alternating layers of organic and
metallic material covered on the outside with plastic. It was made in
three portions which could fold down fiat. It was for use in bed or local
application; one section could be placed under the mattress and the other
two over the patient;
(4)?The funnel style Orgone Energy Accumulator which also was con-
structed of wire mesh, with several alternating layers of organic and
metallic material covered with plastic.
The Orgone Energy Accumulators were not connected with, or plugged into,
any source of electrical or other type of energy or power.
The above-described Orgone Energy Accumulators were offered by the de-
fendants both for sale and for rental.
The complaint alleged also that the defendants had made the following
claims with respect to orgone energy and the operation of the Orgone Energy
Accumulators; that Defendant Wilhelm Reich had discovered a form of energy
present in the atmosphere for which he coined the term "orgone energy";
that the alleged energy was life energy, had therapeutic value, and was bene-
ficial in the cure, mitigation, treatment, and prevention of disease; that
Wilhelm Reich had invented a device in 1940 which collected this alleged
energy from the atmosphere and accumulated it in the device, where it was
usable for scientific, educational, and medical purposes; that the organic
material, which should constitute the outermost layer of the accumulator,
attracted and absorbed the alleged orgone energy; that metallic material,
though it attracted the energy, quickly reflected it; that by layering the
accumulators with the organic material always on the outside, as above-
described, a direction was thereby given to the alleged energy from the outside
to the inside where the alleged energy was collected and concentrated; that
the enclosure within the device constituted an alleged orgone energy field and
the person in the enclosure constituted another such field; that the energy
fields of the two systems would make contact; that both the person and the
energy field would begin to "luminate," become excited and, making contact,
drive each other to higher levels of excitation; and that the user would become
aware of this alleged phenomenon through feelings of prickling, warmth,
relaxation and reddening of the face, accompanied by an increase of body
temperature from ? to 1? degrees Fahrenheit.
The complaint alleged further that the defendants stated that there was no
mechanical rule as to the length of time a person should sit in the devices;
that, on the average, a person required from 5 to 30 minutes daily; that, with
regular use, this time could be shortened from 30-minute to 10-minute ses-
sions; that the necessary time for the sittings was decreased in accordance
with the number of layers the devices happened to have; that a patient could
sit in the devices clothed or unclothed, but woolen or too heavy clothing was
not recommended since such clothing prevented quick contact and lumination;
and that it was better for a person to indulge in two or more short sittings
rather than one protracted sitting as the latter could cause serious damage.
ACCOMPANYING LABELING: Books entitled "The Discovery of the Orgone" by
Wilhelm Reich (Vol. I-"The Function of the Orgasm" and Vol. II-"The
Cancer Biopathy") ; "The Orgone Energy Accumulator-Its Scientific and
Medical Use"; "Ether, God and Devil" by Wilhelm Reich; "Annals of the Or-
gone Institute" ; "Listen Little Man" by Wilhelm Reich; "The Mass Psychology
of Fascism" by Wilhelm Reich; "Character Analysis" by Wilhelm Reich: "In-
ternational Journal of Sex-Economy and Orgone Research" (4 vols, published
1942 through 1945) ; "The Murder of Christ" by Wilhelm Reich; "People in
Trouble" by Wilhelm Reich; "The Oranur Experiment"; Cosmic Superimposi-
tion" by Wilhelm Reich; and "The Sexual Revolution."
Booklets entitled "Orgone Energy Bulletin" (a quarterly publication);
"Emotional Plague Versus Orgone Biophysics"; "Internationale Zeitschrift
Fur Orgonomie"; "Orgone Energy Emergency Bulletin"; "Oranur Project";
and "Additional Information Regarding Soft Orgone Irradiation."
Miscellaneous circulars and sheets entitled "Application For Use Of The
Orgone Energy Accumulator"; "How To Use The Orgone Accumulator"; "In
structions For Assembling The Orgone Accumulator" ; "Catalogue Sheet" ; and
"Physicians Report";  "To All Users of The Orgone Energy Accumulator";
and "Instructions Tor The Orgone Energy Accumulator Blanket."
49209.-- 59 - 3
The complaint alleged further that the items of written, printed, and graphic
matter published and distributed by the Orgone Institute Press, the publishing
house of the defendant, Wilhelm Reich Foundation, consisted of books, book
covers, booklets, periodicals, journals, pamphlets, bulletins, brochures, order
blanks, announcements, catalogs, catalog sheets, form sheets, application forms
for sale and rental of the Orgone Energy Accumulators, and instruction sheets.
The complaint charged that there were many ways in which prospective
purchasers of the devices could learn about them. These encompassed con-
versations with persons acquainted with the devices, as well as advertising
campaigns conducted by the defendants in newspapers, journals, and in maga-
zines which promoted the sales of books, periodicals, booklets, journals, bulle-
tins, and other publications of the defendants. This advertising announced
the existence, availability, and prices of defendants' publications on the dis-
covery and medical use of Orgone Energy by employing the Orgone Energy
Accumulator. Announcements appeared on the removal covers of defendants'
booklets, pamphlets, and journals. Defendants' publications were exhibited at
booksellers and library association conventions and conferences, and were
listed in book reference sources. Also, the defendants had made use of a
mailing list of approximately 7,500 names and had printed 10,000 copies of a
catalog describing the contents of each of their books and periodicals, and
had mailed out approximately 7,000 copies of this catalog.
CHARGE:    501 (c)-the strength of the devices differed from, and their quality
fell below, that which they purported and were represented to possess in that
they were not capable of collecting from the atmosphere and accumulating in    /
said devices the alleged Orgone Energy.
502 (a)-the labeling accompanying the devices, when shipped and while
held for sale, was false and misleading as follows:
. (1) The mimeographed sheet entitled "How To Use The Orgone Ac-
cumulator * * * Please Read Carefully" represented and suggested that
the devices be kept at least three rooms away from an operating X-ray
machine; that the devices should not be used in proximity to operating
X-ray equipment; and that experimentation should not be conducted with
radioactive materials in combination with the alleged Orgone Energy, as
"it is dangerous to life," which representations and suggestions were false
and misleading since they conveyed the impression and belief that the
alleged Orgone Energy was a powerful form of energy, particularly when
in contact with emanations from radioactive material and roentgen rays,
whereas the alleged Orgone Energy was not a powerful form of energy,
was nonexistent, and was not "dangerous to life";
(2)?Some of the accompanying labeling contained a photograph with a
caption conveying the false and misleading impression that the photograph
was an actual photograph of the alleged Orgone Energy;
(3)?Some of the accompanying labeling contained photographs with
captions conveying the false and misleading impression that the photo-
graphs were ones showing excited orgone energy fields;
(4)?The labeling of the devices, namely, the above-mentioned accom-
panying labeling, contained false and misleading representations and
suggestions that the devices were outstanding therapeutic agents; that
they were preventive of, and beneficial for use in, all diseases and disease
conditions, and effective in particular in the cure, mitigation, treatment,
and prevention of cancer, anemia, pernicious anemia, headaches, cancer
'  .  (
tumor of breasts, influenza, acute and chronic colds, grippe, hay fever,
asthma, rheumatism, arthritis, old resilient ulcers, varicose ulcers,
duodenal ulcers, chronic illnesses, bruises, cuts, lesions, abrasions, wounds,
healing of wounds, burns, bedsores, sinusitis, purulent frontal sinusitis,
migraine, neuritis, vascular hypertension, cardiovascular hypertension,
high blood pressure, low blood pressure, decompensated heart disease,
brain tumors, arteriosclerosis, arteriosclerotic heart disease, apoplectic
attacks, skin inflammation, conjunctivitis, sterilization of wounds, im-
mobilization of vaginal bacteria, chronic fatigue, undernourishment,
diabetes, angina pectoris, constipation, Basedow's disease, abscesses,
chronic diarrhea, chronic bronchitis, gastric ulcer, putrefaction of the
intestines, inflammation of the eyeball, hemorrhage of the throat, paraden-
tosis, lichenoid eczema, osteoporosis, thrombophlebitis, compound fracture,
Buerger's disease, ichthyosis, epilepsy, multiple sclerosis, chorea, cancer
pains, raising hemoglobin, elimination of cancer tumors, tumors easily
destroyed, lung cancer, inoperable cancer of esophagus, prevention of
metastasis, leukemia, fistula, Trichomonas vaginalis, cutaneous abscesses,
underweight, pregnancy, tumors, infection, pneumonia, rheumatic fever,
hypertension, cut finger, tissue degeneration, blood degeneration, "myo-
degeneratio cordis," prostatitis, myocardial infarction, intestinal trouble,
mediastinal malignancy, and diabetic neuritis; counteracts nuclear radia-
tion, chills, and low resistance; pneumonia preventive; prevents burn
blisters; and for shock, epidemics, blood, and tissues.
DISPOSITION:   A "Response" was submitted by Defendant Wilhelm Reich, on
I   2-25-54, in which he denied the jurisdiction of the court to deal with and
inquire into the realm of basic research and "Basic Natural Law."
On 3-19-54, all of the defendants having failed to answer Requests for
Admissions, and having failed to appear or answer the Complaint for Injunc-
tion, the court entered a decree of permanent injunction against the defendants
by default, restraining them from introducing into interstate commerce any
Orgone Energy Accumulator devices adulterated or misbranded as charged
above; or doing any act with respect to the devices, while held for sale after
shipment in interstate commerce, which would result in the devices becoming
adulterated or misbranded in any respect.   The decree further provided:
"(1) That all orgone energy accumulator devices, and their labeling, which
were shipped in interstate commerce and which (a) are on a rental basis,
or (b) otherwise owned or controlled by any one of the defendants, or by the
defendants, be recalled by the defendants to their place of business at Rangeley,
Maine; and
"(2) That the devices referred to in (1) immediately above, and their parts,
be destroyed by the defendants or, they may be dismantled and the materials
from which they were made salvaged after dismantling; and
"(3) That the labeling referred to in paragraph (1), just above, except
those items for which a specific purchase price was paid by their owners, be
destroyed by the defendants; and
"(4) That all parts or portions of orgone accumulator devices shipped in
interstate commerce and returned to Rangeley, Maine, or elsewhere, and
awaiting repair or re-shipment be destroyed by the defendants, or, they may
be dismantled and the materials from which they were made salvaged after
dismantling; and
"(5) That all copies of the following items of written, printed, or graphic
' matter, and their covers, if any, which items have constituted labeling of the
article of device, and which contain statements and representations pertain-
ing to the existence of orgone energy, its collection by, and accumulation in,
orgone energy accumulators, and the use of such alleged orgone energy by v
employing said accumulators, in the cure, mitigation, treatment, and pre-
vention of disease, symptoms, and conditions:
The Discovery of the Orgone by Wilhelm Reich
Vol. I-The Function of the Orgasm
Vol. II-The Cancer Biopathy
The Sexual Revolution by Wilhelm Reich
Ether, God and Devil by Wilhelm Reich
Cosmic Superimposition by Wilhelm Reich
Listen, Little Man by Wilhelm Reich
The Mass Psychology of Fascism by Wilhelm Reich
Character Analysis by Wilhelm Reich
The Murder of Christ by Wilhelm Reich
People in Trouble by Wilhelm Reich
shall be withheld by the defendants and not again employed as labeling; in
the event, however, such statements and representations, and any other
allied material, are deleted, such publications may be used by the defendants;
and
"(6) That all written, printed, and graphic matter containing instructions
for the use of any orgone energy accumulator device, instructions for the
assembly thereof, all printed, and other announcements  and order blanks
for the  items listed in the paragraph immediately  above,  all documents,
bulletins,   pamphlets,   journals,   and  booklets  entitled  in part,   as follows:
CATALOGUE SHEET, PHYSICIAN'S REPORT, APPLICATION FOR THE
USE   OF  THE  ORGONE  ENERGY  ACCUMULATOR,  ADDITIONAL  IN-
FORMATION   REGARDING   SOFT   ORGONE   IRRADIATION,    ORGONE
ENERGY    ACCUMULATOR    ITS    SCIENTIFIC    AND    MEDICAL    USE, ,
ORGONE ENERGY BULLETIN, ORGONE ENERGY EMERGENCY BULLE-/
TIN, INTERNATIONAL JOURNAL OF SEX-ECONOMY AND ORGONE RE-L
SEARCH,  INTERNATIONALE ZEITSCHRIFT FUR ORGONOMIE, EMO-
TIONAL PLAGUE  VERSUS  ORGONE BIOPHYSICS,  ANNALS  OF THE
ORGONE INSTITUTE, and ORANUR EXPERIMENT, but not limited to
those enumerated, shall be destroyed; and
"(7) That the directives and provisions contained in paragraphs (1) to
(6) inclusive, above, shall be performed under the supervision of employees
of the Food and Drug Administration, authorized representatives of the
Secretary of Health, Education, and Welfare; and
"(8) That for the purposes of supervision and securing compliance with
this decree the defendants shall permit said employees of the Food and Drug
Administration, at reasonable times, to have access to and to copy from, all
books, ledgers, accounts, correspondence, memoranda, and other records and
documents in the possession or under the control of said defendants, including
all affiliated persons, corporations, associations, and organizations, at Rangeley,
Maine, or elsewhere, relating to any matters contained in this decree. Any
such authorized representative of the Secretary shall be permitted to inter-
view officers or employees of any defendant, or any affiliate, regarding any
such matters subject to the reasonable convenience of any of said officers or
employees of said defendants, or affiliates, but without restraint or inter-
ference from any one of said defendants ; and
"(9) That the defendants refrain from, either directly or indirectly, in
violation of said Act, disseminating information pertaining to the assembly,
construction, or composition of orgone energy accumulator devices to be
employed for therapeutic or prophylactic uses by man or for other animals."
Subsequently, on 5-5-54. a petition for leave to intervene in the above
injunction case was filed in the United States District Court for the District
of Maine on behalf of 15 physicians from New York, New Jersey, and Pennsyl-
vania, who employed Orgonomy in their practices.
The petition prayed that the above default decree be vacated and that th^
applicants be granted leave to serve and file answers to the complaint.   The ap- ~
plication was based upon the contention that the applicants were and might be
bound by the decree; that the named defendants in the complaint inadequately-
represented applicants' interest; that the applicants were so situated that
property under the control of the court might be disposed of and applicants
would be adversely affected thereby; and, that the rights of the applicants
rested upon claims or defenses which were identical in questions of law and
fact with those in the main action.
The application was denied by the court on 11-17-54, with the following
opinion (17 F. R. D. 96) :
CLIFFORD, District Judge: "This action comes before this Court upon an
application for intervention, filed on May 5,1954, by Elsworth F. Baker, K. M.
Bremer, Philip Gold, Sidney Handelman, Morton Herskowitz, Charles I. Oiler,
Chester M. Raphael, Michael Silvert, Victor A. Sobey, William F. Thorburn,
Oscar Tropp, Simeon J. Tropp, Eileen Walkenstein, James A. Willie and
Albert I. Duvall, hereinafter referred to as the applicants. They seek to
intervene in the above-entitled action, in which the defendants defaulted and
a decree of injunction was entered on March 19,1954.
"A brief history of that case, hereinafter referred as the original proceeding,
is essential to an understanding of this application. On February 10, 1954, a
complaint for injunction was filed by the United States of America against
the named defendants under section 302 (a) of the Federal Food, Drug, and
Cosmetic Act (21 U. S. C. 332 (a)) to restrain violations of section 301 (a)
and (k)  (21 U. S. C. 331 (a) and (k)) of said Act.
"The defendant, the Wilhelm Reich Foundation, was a Maine corporation
having its principal place of business at Rangeley, Maine. Defendant, Wilhelm
Reich, was an individual residing in Rangeley and was the moving spirit in
the above Foundation and its activities; Use Ollendorff, otherwise known as
Mrs. Wilhelm Reich, also resided at Rangeley and was actively engaged in the
conduct of the Foundation, and other affiliated activities of Wilhelm Reich.
"The complaint alleged in general that the said defendants were manu-
facturing and introducing into interstate commerce certain devices referred
to by them as orgone energy accumulators, and were representing in their
labelling that such devices were therapeutic agents which were beneficial in
the cure, mitigation, treatment, and prevention of innumerable diseases and
conditions, including such serious and chronic ailments as cancer, anemia,
arteriosclerosis, brain tumors, diabetes, gastric ulcers, Buerger's Disease, and
leukemia. It was further alleged that such devices were not effective in the
treatment of such diseases and conditions and that, therefore, they were
misbranded within the meaning of 21 U. S. C. 352 (a) ; it was also alleged that
they were adulterated within the meaning of 21 U. S. C. 351 (c) in that their
strength differed from, and their quality fell below, that which they were
purported and represented to possess. The complaint prayed that the defend-
ants, their officers, agents, servants, employees, attorneys, all corporations,
associations, and organizations, and all persons in active concert or partici-
pation with any of them be perpetually enjoined from introducing or delivering
for introduction into interstate commerce any such orgone energy accumulator
devices and their accessories or any similar article allegedly so misbranded
and adulterated. The complaint also prayed that the named defendants be
perpetually enjoined from doing or causing any act, oral, written, or otherwise
with respect to any kind of orgone energy accumulator device while held for
sale after shipment in interstate commerce, which results in said article being
misbranded or adulterated within the meaning of the above designated sections
of the Act.
"Service of a copy of the complaint and summons were duly made upon
each of the three defendants on February 10, 1954. No appearance was
entered by any of the defendants, nor was an answer filed by them. However,
under date of February 25, 1954, defendant Wilhelm Reich sent to the Pre-
siding Judge of this Court a letter purporting to be a concise statement of
his position which was more fully set forth in an enclosed lengthy document
entitled by him as the 'Response.'   The letter reads as follows:
DEAB JUDGE CXIFFOBD :
I am taking the liberty of transmitting to you my "Response" to the \
complaint filed by the Food and Drug Administration regarding the
Orgone Energy Accumulator.    My  "Response"  summarizes my stand-
point as a natural scientist who deals with matters of basic natural
law.   It is not in my hands to judge the legal aspects of the matter.
My factual position in the case as well as in the world of science of
today does not permit me to enter the case against the Food and Drug
Administration, since such action would, in my mind, imply admission
of the authority of this special branch of the Government to pass judg-
ment on primordial, pre-atomic cosmic orgone energy.
I, therefore, rest the case in full confidence in your hands.
Sincerely yours,
/S/   WILHELM REICH, M. D.
"On February 26, 1954, certain requests for admissions were propounded
by the United States and served upon each of the named defendants re-
questing answer thereto within ten days after such service. No appearance,
acknowledgment, or answer was made, at any time, by any of the defendants
in reply thereto. Twenty-one days later, namely, on March 19, 1954, upon
requests by the United States, default of each of the named defendants was
duly entered by the Clerk of this Court. On the same date, upon motion for
Default Judgment by the Government, a Decree of Injunction against the
named defendants was entered, as prayed for, enjoining them and their
officers, agents, servants, employees, attorneys, all corporations, associations,
and organizations, and all persons in active concert, or participation with
any of them from the practices set out in the complaint.
"On March 22, 1954, certified copies of the decree were served on the
three named defendants.   At the same time, copies were either served upon
or mailed to several other persons at Rangeley, Maine, and at nearby Farming-,
ton, who were employees or contractors for the defendants in the manufacture'
and distribution of these devices.
\ _
"Copies of the decree were also mailed to each of the applicants. These
individuals are duly licensed physicians, nearly all of whom specialize in
the practice of psychiatry in the New York City, Philadelphia, and New
Jersey area. As it appears from their affidavits, they have no legal relation-
ship with any of the named defendants. Apparently, copies of the decree
were mailed to them because of their activity in the field of Orgonomy.
They all believe in the existence and validity of the alleged science, employ
its principles and use orgone energy accumulators in their professional prac-
tices, and many of them had within recent years studied matters relating
to Orgonomy under Dr. Reich. It does not appear, however, from their
affidavits and answer, nor do they contend, that they were engaged in the
manufacture and distribution in interstate commerce of orgone energy ac-
cumulators.
"The application for intervention was filed on May 5, 1954, approximately
two months after the entry of the default decree, and counsel for the Govern-
ment and the applicants were heard thereon on the same day.
"On June 7, 1954, the Government filed a statement and certain documents
in opposition to this motion to intervene, and served copies by mail upon
counsel for the applicants. Among the documents submitted by the Govern-
ment was a telegram sent by Use Ollendorff, clerk of the Wilhelm Reich
Foundation, which read as follows:
1954 MAE. 30
PETER MILLS
DlSTEICT ATTOBNET,
FEDERAL COUBT HOUSE, POBTLAND, ME.
The Wilhelm Reich Foundation is far advanced in preparing full
compliance with injunction of March 19, 1954 Stop   An exact account
of measures taken and still in progress will be sent to your office for
your information.
THE WILHELM REICH FOUNDATION,        (
Use Ollendorf, Clerk. V_
Also, briefs were subsequently submitted for consideration by this Court.
"The right to intervene is governed generally by Rule 24 of the Federal
Bales of Civil Procedure, the pertinent portions of which read as follows:
(a)?Intervention of right. Upon timely application anyone shall be per-
mitted to intervene in an action: * * * (2) When the representation of
the applicant's interest by existing parties is or may be inadequate and
the applicant is or may be bound by a judgment in the action; * * *
(b)?Permissive Intervention. Upon timely application anyone may be
permitted to intervene in an action: * * * (2) When an applicant's claim
or defense and the main action have a question of law or fact in com-
mon. * * * In exercising its discretion the court shall consider whether
intervention will unduly delay or prejudice the adjudication of the rights
of the original parties. * * *
"'Principally, the applicants contend that they are members of a class against
whom, along with the named defendants, the original proceeding was filed;
that they were not given notice of the action by process; that they were not
adequately represented by the named defendants in that proceeding; that
they are bound by the decree in that it was designed to and actually does
interfere with basic functions of their practice of medicine; and that this is
a right which they should have had the opportunity to protect in the original
proceeding. They conclude, therefore, that having an absolute right to inter-
vene under Rule 24 (a) (2), intervention should be allowed even after a
final judgment has been entered because there is no other way in which said
right could be protected.
"Independently of Rule 24 (a) (2), they contend that their claims and
defenses involved questions of law and fact identical with those of the original
proceeding and, therefore, permission to intervene should be granted them
under Rule 24 (b) (2).
"Although the right to intervene under Rule 24 (a) (2) must be predicated
upon the two factors referred to therein, the crucial prerequisite seems to be
whether or not the applicant may be 'bound' by the judgment in the action.
4 Moore's Fed. Practice, 2d Ed., Par. 24.08; see note, 63 Yale Law Journal 408.
It is generally held that an applicant may be 'bound' within the meaning of
Rule 24 (a) (2) only when he may be subject to res judicata. Stuphen
Estates v. United States, 324 U. S. 19; Innis, Speiden & Co. v. Food Machinery
Corp., 2 P. R. D. 261; Owen v. Paramount Productions, 41 F. Supp. 557; cf.
Cameron v. President and Fellows of Harvard College, 157 F. 2d 993.
The rationale is that the protection afforded by intervention of right is not
essential to one who will have another legal remedy available after judgment.
Note, 63 Yale Law Journal, supra, 411. And, as a general rule, no person or
those in privity with him is bound by an in personam judgment arising from
an action in which he was neither served with process nor given an oppor-
tunity to litigate his claims or defenses. Pennoyer v. Neff, 95 U. S. 714;
Hansberry v. Lee, 311 U. S. 32. The effect of a judgment in a class action,
however, is a recognized exception to this latter rule. Hansberry v. Lee,
supra; U. 8. v. American Optical Co., 97 F. Supp. 66; Restatement of the Law,
Judgments, Sec 86. But it is only in a so-called true class action that the
judgment is conclusive upon the absent members. System Federal No. 94 v.
Reed, 180 F. 2d 991; Waybright v. Columbian Mutual Life Ins. Co., 122 F. 2d
245. A judgment in a 'hybrid' action is conclusive upon absent members only
as to their rights in the res; in a 'spurious' class action, only on the parties
before the court.   See 46 Columbia L. Rev. 818, 824.
"It is apparent that the applicants have assumed that the original proceed-
ing was a true class action, the judgment in which would be binding upon them
even though they were not designated parties to it. Concerning what was
involved in the original proceeding, this is the only basis upon which they
could possibly hope to succeed in their attempt to intervene as a matter of
right Indeed, there is authority that Rule 24 (a) (2) is limited in its appli-
cation to technical representative actions, such as the true and hybrid class
suits provided for in Rule 23 (a). U. S. v. Columbia Gas & Electric Corp.,
27 F. Supp. 116; 4 Moore's Federal Practice, 2d Ed. Par. 24.08; see also Note,
63 Yale Law Journal, supra, n. 16.
"The applicants, however, have in the opinion of this Court misconceived
the basis and nature of the original proceeding and are clearly unwarranted
f '
in their contentions with regard to intervention as a matter of right under \
Rule 24 (a) (2). The original proceeding was an in personam action brought
solely against three specifically designated persons for the purpose of en-
joining them from manufacturing and distributing in interstate commerce
orgone energy accumulators which, were adulterated and misbranded
within the meaning of the Food and Drug Act. The very purpose of the Act
is to keep interstate commerce free from deleterious, adulterated and mis-
branded articles of specified types to the end that the public health and safety
might be advanced. United States v. Walsh, 331 U. S. 432. And the prohi-
bition of the stated activity of the named defendants was the sole object
which the Government sought to accomplish by its action.
"Since the applicants were not engaged in the manufacture and distribution
in interstate commerce of orgone energy accumulators, nor were they in any
respect legally associated with the named defendants, the named defendants
were properly the only parties before this Court in the original proceeding. '
Especially is this so when the applicants themselves frankly state in their
briefs that the only purpose for their application for intervention is to estab-
lish the existence and validity of Orgonomy, a matter which was collateral
to the main issue in the original proceeding. Accordingly, persons who are
not parties to an injunction, nor in privity with them, and whose rights have
not been adjudicated therein are not bound by a decree and cannot be held
liable for acts done contrary thereto even though the decree assumes to bind
them. Swetland v. Curry, 188 F. 2d 841; Eean v. Hurley, 179 F. 2d 888;
Chase National Bank v. City of Norwalk, 291 U. S. 431; Alemite Mfg. Corp.
v. Staff, 42 F. 2d 832; Scott v. Donald, 165 U. S. 107.
"The fact that the applicants may subject themselves to contempt pro-
ceedings if they act in concert with the named defendants in violating the
terms of the decree does not alter the basic nature of the original proceeding.
The provision  relating to  'officers,  agents,  servants,  employees,  etc. . . .'
was inserted merely to make the decree effective as against the named,
defendants, adopting to a great extent the language of Rule 65(d)  of the I
Federal Rules of Civil Procedure.    Such clauses are a standard provision '
in injunction decrees and do not impose any liability which would not exist
without them.    Alemite Mfg. Corp. v. Staff, supra; Regal Knitwear Co. v.
Board, 324 U. S. 9; Chase National Bank v. City of Norwalk, 291 U. S. 431;
United States v. American Optical Co., 97 F. Supp. 66.    As stated in Regal
Knitwear Co. v. Board, Supra, 14:
This [Rule 65 (d)] is derived from the common-law doctrine that a
decree of injunction not only binds the parties defendant but also those
identified with them in interest, in "privity" with them, represented by
them or subject to their control. In essence it is that defendants may
not nullify a decree by carrying out prohibited acts through aiders and
abettors, although they were not parties to the original proceeding.
[Emphasis supplied.]
"Service of copies of the decree upon the applicants, therefore, was in
conformance with Rule 65 (d), putting them on notice that they, like any
other person with notice of the decree, are subject to contempt proceedings
should they enable the named defendants to circumvent its terms by per-
forming proscribed activities through them. Nevertheless, since they were
not parties to the original proceeding, their activity in the field of Orgonomy
remains unrestricted even with regard to matters barred by the decree, so
long as they act independently of the named defendants. Undoubtedly,
however, the applicants will, as a practical matter, be adversely affected
by the decree, but that is of no legal consequence, insofar as intervention of
right is concerned. Stuphen Estates v. United States, 324 U. S. 19; Durkin
v. Pet Milk Co., 14 F. R. D., 374, 378, where the court stated that the 'movants
may be indirectly affected by a judgment . . . but they will not be "bound"
by the judgment in the sense contemplated by the Rule.' See also Brother-
hood of Locomotive Engineers v. Chicago, M. St. P. & P. R. R., 34 F. Supp,
594, 596; Kind v. Markham, 7 F. R. D. 265. Therefore, under all the fact!
and circumstances of this case, this Court is of the opinion that the appli->
cants do not have an absolute right to intervene under Rule 24 (a) (2)
because the default decree is not and cannot be res judicata as to them.
"Furthermore, under both Rule 24 (a) (2) and Rule 24 (b) (2) an appli-
cation for intervention must be timely made. What constitutes timeliness
is entrusted to the discretion of the Court. Permissive intervention under
Rule 24 (b) (2) is very largely a matter of trial convenience and should
be made at an early stage of the main proceedings to be of any measurable
value. Intervention under Rule 24 (a) (2), however, involves something
more than trial convenience and might well be allowed at a stage in the
proceedings when permissive intervention would be denied, Cameron v.
President and Fellows of Harvard College, 157 F. 2d 993. Although the
determination of timeliness involves a consideration of a number of factors
and the time element alone is not controlling, a strong showing must be made
by the applicants in order to be allowed to intervene after the entry of a
final judgement.   See 4 Moore's Federal Practice 2d Ed. Par. 24.13.
"The only factor stressed by the applicants in this regard is that they have
no other way in which their rights could be protected, citing Pellegrino v.
Nesbit, 203 F. 2d 463; Wolpe v. Peretsky, 144 F. 2d 505; United States Casualty
Co. v. Taylor, 64 F. 2d 521; Western Union Telegraph Co. v. IBEW, Local Union
No. 184, et al, 133 F. 2d 955. The premise upon which the applicants base
their contention is erroneous. As this Court has already determined, the
applicants are not 'bound' by the original proceeding and, therefore, their rights
with regard to Orgonomy have never been adjudicated. Consequently, the
applicants' contention in this respect is without merit and the cases cited by
them are, therefore, inapplicable.
"Moreover, considering that the application for intervention was filed some
two months after the entry of the default decree and one of the named defend-
ants has indicated to the United States Attorney for the District of Maine that
they have substantially complied with its terms, and under all of the other facts
and circumstances of this case, this Court, in the exercise of its discretion, is
of the opinion that the application for intervention was not timely made under
the provisions of either Rule 24 (a)   (2) or 24 (b)   (2).
"It is therefore ORDERED, ADJUDGED, and DECREED that the applica-
~ I tion for intervention filed by the applicants on May 5, 1954, be and hereby is
DENIED."
Applicants moved for a stay of execution of the decree of injunction pending
appeal to the United States Court of Appeals for the First Circuit. This
motion was granted by the district court on 1-18-55, as applying to the destruc-
tion of books and apparatus on 1-18-55, and was denied as to the rest of the
terms of the decree.
Applicants thereafter appealed the denial of the application to intervene;
and, on 5-11-55, the United States Court of Appeals for the First Circuit
affirmed the decision of the district court (221 F. 2d 957).
Applicants thereafter filed motions for a stay of enforcement of the decree
of injunction in the United States District Court for the District of Maine, in
the United States Court of Appeals for the First Circuit, and in the United
States Supreme Court, pending a petition for a writ of certiorari. All of these
motions were subsequently denied.
On 10-10-55, the.United States Supreme Court denied applicants' petition
for a writ of certiorari.