dissenting:

I would hold that the findings of the district court, being based upon inferences drawn from the undisputed facts and the documentary evidence, are not clearly erroneous and that the judgment of the district court should be affirmed. Because the taint of short swing trading by a vice-president causes subjective damage to the issuer by eroding shareholder confidence in the integrity of management, the penalties of Section 16(b) should here be applied. Champion Home Builders Co. v. Jeffress, 490 F.2d 611, 619 (CA6 1974), cert. denied 416 U.S. 986 , 94 S.Ct. 2390 , 40 L.Ed.2d 763 . We have before us a purchase and sale by a vice-president within the six month period. Here, the district court found that Livingston had not rebutted the presumption that he had the potential for access to inside information and, at least, that he had the opportunity to gain access to such information. Makofsky v. Ultra Dynamics Corp., 383 F.Supp. 631, 640 (S.D.N.Y.1974).

Manifestly, the statute raises a presumption that a person who holds the title of vice-president has the executive duties and the opportunities for confidential information that the title implies. I agree that this presumption can be overcome. However, I would hold that whether the presumption is overcome is an issue to be decided by the trier of the facts. Consequently, on this record, we cannot say as a matter of law that the appellant fulfilled this burden. In Rosenbloom v. Adams, Scott & Conway, Inc., 552 F.2d 1336 (CA9 1977), a case cited by appellant, arising under 15 U.S.C. § 78aa (1971), Rule 10b-5 ( 17 C.F.R. § 240 .10b-5 (1976)), the court concluded that since genuine issues of fact existed concerning Rosen-bloom’s access to information and his knowledge about various corporate affairs, the court could not decide the question as a matter of law. There, the case had been decided by the lower court on a motion for summary judgment. Here, there was a full-fledged trial and the judge made findings of fact, including a finding that appellant was an officer of the company with access to inside information within the meaning of Section 16(b).

The majority argues with the district court on whether the evidence, documentary and otherwise, and the inferences to be drawn therefrom, was sufficient to support the findings. In so doing, it completely overlooks the fact that appellant took the witness stand and was exhaustively interrogated by the court on possible inside information. This conversation consumed at least fifteen pages of the transcript. Thus, the court had an opportunity to see and observe this witness and pass on his credibility. After this' thorough interrogation, the court found that appellant sought no advice from any of the appellee’s officers with reference to the permissibility of the sales under Section 16(b), but to the con *1124 trary that he had been informed by appel-lee’s policy bulletins that the trades were improper. The court further found that the appellant was an “officer” of the appellee within the meaning of Section 16(b) of the Securities & Exchange Act of 1934 and that appellant had access to “inside information” within the meaning of that Act. By necessary implication, the district court found that appellant had failed to overcome the presumption created by Section 16(b).

Even if the facts were undisputed, the clearly erroneous rule would apply if, as here, different inferences could be drawn from those facts. Lundgren v. Freeman, 307 F.2d 104, 114-115 (CA9 1962). This rule has been approved by us as recently as United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1107-1108 (CA9 1976). Moreover, the appellee is entitled to have the evidence viewed in a light most favorable to it and to have the benefit of all reasonable inferences. United States v. Babbs, 483 F.2d 308, 312 (CA9 1973).

Because the district court held that appellant was a vice-president and an officer within the meaning of Section 16(b) and had access to inside information, and had a right to draw inferences to that effect from the documentary evidence and live testimony received, I would hold that the findings are not clearly erroneous and that the judgment of the lower court should be affirmed.

On these findings, Section 16(b) imposes liability without fault. Foremost-McKesson, Inc. v. Provident Securities Co., 423 U.S. 232, 251 , 96 S.Ct. 508 , 46 L.Ed.2d 464 (1976); Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582, 595 , 93 S.Ct. 1736 , 36 L.Ed.2d 503 (1973).

The judgment of the district court should be affirmed.