UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: December 21, 1973.
ROCHEZ BROS., INC., A PENNSYLVANIA CORPORATION,
CHARLES R. RHOADES, AND M S & R INC., A PENNSYLVANIA CORPORATION, ROCHEZ BROS., INC., A PENNSYLVANIA CORPORATION, APPELLANT IN NO. 73-1257, CHARLES R. RHOADES, APPELLANT IN NO. 73-1258
(D.C. Civil Action No. 68-1048) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Hastie, Van Dusen and Adams, Circuit Judges. Hastie, Circuit Judge, dissenting in part.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
In these appeals both parties seek reversal of district court, 353 F. Supp. 795 orders granting judgment with damages against an individual defendant, Charles R. Rhoades, in an action under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b),*fn1 and Rule 10b-5*fn2 of the Securities and Exchange Commission, and dismissing such action against a corporate defendant, MS&R, Inc. Plaintiff contends that the damages are inadequate and the judgment should also have been entered against the corporate defendant, whereas defendant Rhoades contends that judgment should have been entered in his favor on the liability issue.
The case arises from the sale of 50% of the issued and outstanding stock of MS&R, Inc. by Rochez Bros., Inc. to Charles R. Rhoades on November 13, 1967, in accordance with an agreement of sale dated September 16, 1967, for the price of $650,000. The interest of Rochez Bros. in MS&R began on July 1, 1964, when Rochez Bros. bought 50% of the stock of MS&R for $272,500. At the same time Rhoades, who already owned 33 1/3% of the MS&R stock, brought his stock ownership up to 50%. This evenly divided stock ownership continued until November 13, 1967, when Rhoades bought out Rochez Bros., thus becoming the sole owner of the stock of MS&R. During this time, Rhoades was full-time Chairman of the Board, Chief Executive Officer, and President of MS&R. Joseph Rochez, the President of Rochez Bros., was a part-time Vice President of MS&R and a member of its three-man Board of Directors. Rhoades ran the business activities of MS&R on a day-to-day basis, while Rochez was primarily concerned with general policy matters in relation to finance and growth of the company.
As a result of increasing dissension between the two men, founded both in personality differences and business disagreements, both Rochez and Rhoades were authorized by the Board in the spring of 1967 to contact prospective purchasers of the company, but these efforts produced no results. At this time, they also began discussing a buy-sell agreement whereby one of them would buy out the other's interest. Finally, on September 11, 1967, Rochez Bros. named the price for which it was willing to sell its stock in MS&R to Rhoades, subject to the condition that the sale should be concluded by noon on September 15 and that Rhoades should put $50,000. in escrow, to be forfeited if no closing occurred. On September 16, 1967, an agreement of sale was executed, under which Rhoades bought the stock of Rochez Bros. in MS&R for $598,000.*fn2a The closing and delivery of the stock certificates to Rhoades took place on November 13, 1967.
Prior to the September 16 agreement, Rhoades answered a newspaper advertisement placed by one Wingate Royce, of New York City, in January or February of 1967. Royce phoned Rhoades, who told Royce that he was interested in discussing financing for MS&R. Rhoades then sent Royce MS&R financial information and made an appointment for Royce to come to Pittsburgh on April 21, 1967. Royce did visit the MS&R plant on that date and was introduced by Rhoades to Rochez, who declined to hire him to find a purchaser for MS&R. Rhoades, however, did agree to retain Royce to find leads and make introductions to bring about the sale of MS&R. Rhoades never informed Rochez Bros. of the employment of Royce or of the negotiations for the sale of MS&R that followed.
Thereafter, in May 1967, Royce brought MS&R as a potential acquisition to the attention of J. Walter English, of Simmonds Precision Products Co. In May 1967, English visited MS&R after Royce had informed Rhoades that Simmonds was a potential purchaser. In late August or early September 1967, Rhoades and his production assistant went to Hartford to visit a Simmonds plant. Upon arrival at the Hartford airport, Rhoades telephoned his Pittsburgh attorney's office to learn how the buy-sell negotiations with Rochez Bros. were progressing. They then visited the plant and dined with Simmonds personnel. On the return trip to Pittsburgh, they rode with Geoffrey Simmonds in the latter's company plane, and Simmonds toured the MS&R plant before continuing to a further destination.
Royce also informed Rhoades of the interest of Carus Chemical Company in acquiring MS&R stock. In the latter part of August 1967, the Carus brothers visited the MS&R plant and told Rhoades that Carus would be interested in purchasing MS&R stock.
Upon conclusion of the agreement of September 16, 1967, for the purchase of the Rochez stock, Rhoades increased his efforts to sell MS&R. On September 18, 1967, he telephoned both Simmonds and Carus and began negotiations that led to offers from both. However, the Carus offer was unattractive to Rhoades since it in effect required him, continuing as director, to earn the purchase price out of future profits of MS&R. The Simmonds offer also fell through, both because Rhoades found it unattractive taxwise and because Simmonds did not wish to become involved in a possible lawsuit with Rochez Bros. Finally, in April 1968, Rhoades began negotiations with Esterline Corporation, through the initiative of Western Pennsylvania National Bank, which resulted in a formal agreement on July 16, 1968, in which Esterline agreed to pay $4,250,000. in cash and 50,000 shares of Esterline restricted stock for the 100% of MS&R stock then held by Rhoades and two other persons to whom he had sold some shares.
Rochez Bros. brought this action under section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b) and Rule 10b-5 of the Securities and Exchange Commission with pendent jurisdiction fraud counts under Pennsylvania law.*fn3 The case was tried to the court, which entered judgment on January 22, 1973, in favor of Rochez and against Rhoades in the amount of $402,000., with interest from September 16, 1967.*fn4 The district court on the same day also entered a separate order dismissing the action as to MS&R, the corporate defendant.
I. LIABILITY OF RHOADES
Defendant Rhoades contests the district court's decision on the ground that plaintiff failed to demonstrate the following elements necessary to establish liability under section 10(b) of the Securities Exchange Act and Rule 10b-5 of the Securities and Exchange Commission.
The question of whether proof of actual knowledge or willful or reckless disregard of the truth is necessary to establish liability under Rule 10b-5 is an unsettled area of the law. The circuits are divided on this question. Some have adopted a negligence standard. See City National Bank v. Vanderboom, 422 F.2d 221, 229-230 (8th Cir.), cert. denied, 399 U.S. 905, 26 L. Ed. 2d 560, 90 S. Ct. 2196 (1970); Myzel v. Fields, 386 F.2d 718, 734-735 (8th Cir. 1967), cert. denied, 390 U.S. 951, 19 L. Ed. 2d 1143, 88 S. Ct. 1043 (1968); Stevens v. Vowell, 343 F.2d 374, 379-380 (10th Cir. 1965); Royal Air Properties, Inc. v. Smith, 312 F.2d 210, 212 (9th Cir. 1962); Ellis v. Carter, 291 F.2d 270, 274 (9th Cir. 1961).*fn5 However, recently the Second Circuit, sitting en banc, held that scienter was a necessary element in a case involving non-disclosure of material facts. Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973). This court has never been faced squarely with this issue, and we need not resolve it in this case, since the Lanza decision makes clear that to the extent scienter is required, that requirement is satisfied in a non-disclosure case where, as here, the defendant had knowledge of the undisclosed information.*fn6 See also A. Bromberg, Securities Law: Fraud, Vol. 2, P. 8.4 (521) at p. 204.131, and P. 8.4(525) at pp. 204.137-44 (1971). Defendant seems to argue that the scienter test requires further proof that the non-disclosure was willful and not merely negligent, suggesting that in light of the time pressure placed on him to agree to plaintiff's terms, his nondisclosure does not constitute fraud. Defendant does not cite any cases to support this claim,*fn7 and there is considerable authority against interpreting a scienter requirement as equivalent to a showing of intent to defraud. See A. Bromberg, supra, P. 8.4(544) at pp. 204.177-81 and cases cited therein. Defendant was under a duty to disclose all material facts to plaintiff, and his failure to do so when he had actual knowledge of those facts satisfies any scienter requirement.*fn8
The test of the materiality of undisclosed or misrepresented facts is basically an objective one--i.e., whether "a reasonable man would attach importance [to them] in determining his choice of action in the transaction in question." List v. Fashion Park, Inc., 340 F.2d 457 (2d Cir.), cert. denied, 382 U.S. 811, 86 S. Ct. 23, 15 L. Ed. 2d 60 (1965). See also Myzel v. Fields, 386 F.2d 718, 734 (8th Cir. 1967), cert. denied, 390 U.S. 951, 19 L. Ed. 2d 1143, 88 S. Ct. 1043 (1968). Under this test there is little doubt that information concerning negotiations by one owner of 50% of the stock of a business with potential purchasers is material, for a reasonable man who owned the other 50% of the stock would surely attach importance to that information in deciding whether to sell out to his co-owner. Defendant's arguments on this point do not directly dispute this reasoning, but rather contest the district court's finding of those facts held to be material. We must, therefore, review the record to determine if the district court's finding that defendant was engaged in negotiations with Simmonds and Carus for the sale of MS&R, and that these negotiations had reached a stage where their existence and contents were material, is clearly erroneous. See F.R. Civ. P. 52(a).
There is ample evidence that Rhoades hired Royce to find a purchaser of MS&R and that this fact was concealed from Rochez.*fn9 There was equally adequate proof that Royce helped to arrange the visit of English to MS&R, that Simmonds was interested in the prospect of acquiring MS&R and that Rhoades knew it. Defendant contends that his discussions with English concerned only the sale of MS&R products to Simmonds and not acquisition of MS&R by Simmonds. However, there is ample support in English's testimony that acquisition discussions began during that visit.*fn10 Defendant also contends that his contacts with Simmonds in September 1967 during his trip to its plant near Hartford and the return trip to Pittsburgh had nothing to do with acquisition of MS&R. Again, there is sufficient evidence to support the district court's skepticism toward this contention and its finding that the purpose of the trip was to continue acquisition discussions begun in May.*fn11 The district court also rejected as improbable the claim by defendant that the visits of the Carus brothers to the MS&R plant were merely to look at the computer system employed by MS&R.*fn12 Defendant argues that even if his version of these visits is not believed, it cannot support the opposite conclusion--that acquisition negotiations with Carus did occur. However, the district court's finding as to these visits does not depend solely upon its disbelief of Rhoades' testimony, but also derives from inferences it could properly make from other evidence in the record.*fn13 Finally, even if we were to accept defendant's protestations that he rejected all advances made by Simmonds and Carus concerning the purchase of MS&R, it is undisputed that they displayed a strong interest in such an acquisition, and that interest would certainly be a factor affecting the decision of a reasonable man in Rochez's position with respect to the transaction between him and Rhoades. We therefore hold that the district court's findings supporting its conclusion that there were material facts that defendant failed to disclose are not clearly erroneous.
C. Due Care
The cases generally hold that before an insider may claim reliance on a material misrepresentation or nondisclosure, he must fulfill a duty of due care in seeking to ascertain for himself the facts relevant to a transaction. See, e.g., Financial Industrial Fund, Inc. v. McDonnell Douglas Corp., 474 F.2d 514 (10th Cir. 1973); Clement A. Evans & Co. v. McAlpine, 434 F.2d 100 (5th Cir. 1970), cert. denied, 402 U.S. 988, 29 L. Ed. 2d 153, 91 S. Ct. 1660 (1971); City National Bank v. Vanderboom, 422 F.2d 221 (8th Cir.), cert. denied, 399 U.S. 905, 26 L. Ed. 2d 560, 90 S. Ct. 2196 (1970). However, the cases also hold that a plaintiff cannot fail in his duty of due care if he lacked any opportunity to detect the fraud. See, e.g., Johns Hopkins University v. Hutton, 422 F.2d 1124 (4th Cir. 1970), on remand, 326 F. Supp. 250 (D. Md. 1971); City National Bank v. Vanderboom, supra; Lehigh Valley Trust Company v. Central National Bank, 409 F.2d 989 (5th Cir. 1969). The nondisclosed facts here were in Rhoades' personal knowledge or private files and were not available to Rochez. There is no evidence that any corporate books, records, or minutes available to Rochez contained information with respect to the employment of Royce or the negotiations with Simmonds or Carus. Thus, Rochez's status as an insider, his financial expertise, and his business acumen are all irrelevant, for he had no access to the critical information or any opportunity to discover the non-disclosed facts. We therefore conclude from the record that Rochez adequately fulfilled his duty of due care.
Recovery under Rule 10b-5 is sometimes said to require a showing that the party seeking damages actually relied on the misrepresentation or omission of material facts. See, e.g., List v. Fashion Park, Inc., supra at 462. Thus, while the objective test of materiality (see pp. 8-9, supra) provides the basis for the defendant's duty to disclose, the reliance requirement provides the causal link between the non-disclosure and the loss suffered. However, proof of reliance is not required in all cases under Rule 10b-5. The Supreme Court has recently held:
"Under the circumstances of this case, involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of his decision. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384 [24 L. Ed. 2d 593, 90 S. Ct. 616] (1970); SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968), cert. denied sub nom. Coates v. SEC, 394 U.S. 976 [22 L. Ed. 2d 756, 89 S. Ct. 1454] (1969); 6 L. Loss, Securities Regulation 3876-3880 (1966 Supp. to 2d ed. of Vol. 3); A. Bromberg, Securities Law, Fraud--SEC Rule 10b-5, §§ 2.6 and 8.6 (1967). This obligation to disclose and this withholding of a material fact establish the requisite element of causation in fact. Chasins v. Smith, Barney & Co., 438 F.2d, at 1172."
Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-154, 31 L. Ed. 2d 741, 92 S. Ct. 1456 (1972).*fn14 We do not read this decision to say that the question of reliance vel non may not be considered at all in a non-disclosure case, but only that proof of reliance is not required for recovery. If defendant is able to demonstrate that there was clearly no reliance, that is, that even if the material facts had been disclosed, plaintiff's decision as to the transaction would not have been different from what it was, then the non-disclosure cannot be said to have caused the subsequent loss and under the ordinary principles of the law of fraud, recovery should be denied. See Prosser, Law of Torts, § 103 (3d ed. 1964). However, in light of the Supreme Court's holding in Affiliated Ute, the burden of proof rests squarely upon defendant to establish the "non-reliance" of plaintiff.
Defendant stresses a number of facts which he claims show that Rochez would have proceeded to reach the same buy-sell agreement with defendant as he did on September 16, 1967, even if he had known of the negotiations with Simmonds and Carus. First, from earlier negotiations to sell MS&R authorized by the Board of Directors, Rochez knew that Rhoades had valued a 50% interest in MS&R to a possible outside purchaser at $1.75 million, and this was at a time prior to the Babcock & Wilcox contract that proved so lucrative to MS&R. Rochez considered that valuation ludicrously high. Second, Rochez initiated the deal on September 11, 1967, and gave Rhoades only until September 15, 1967, to agree to it and to put up $50,000., which would be forfeited if the closing did not take place. Third, when Rochez set the price at which Rochez Bros. would sell its MS&R stock to Rhoades, he stated that he did not care where Rhoades got the money and that he assumed that Rhoades had outside investors waiting in the wings. These facts demonstrate that Rochez did not share Rhoades' sanguine estimation of the worth of MS&R stock, was most anxious to press forward with the deal, and was unconcerned with the source of the money that was to pay for the shares of MS&R stock held by Rochez Bros. However, they do not compel the conclusion that Rochez would have been indifferent to the amount of money that Simmonds or Carus was willing to pay. Even if it is true, as Rhoades contends, that as of September 16, when the firm commitment was signed, he had not yet received any specific offer from either Simmonds or Carus,*fn15 the record indicates that negotiations had progressed far enough that an offer of a price by one of the prospective purchasers was to be expected shortly.*fn16 On the basis of the evidence before it, the district court could properly have concluded that if Rochez had been apprised of the undisclosed facts, he would not have plunged ahead with the buy-sell agreement with Rhoades on the same terms without first finding out how much Simmonds or Carus was prepared to pay, and that these estimates would have influenced his willingness to sell to Rhoades at the price he had originally asked.
On the basis of the foregoing analysis, we affirm the decision of the district court as to the liability of defendant Rhoades under Rule 10b-5.
II. THE MEASURE OF DAMAGES
In Affiliated Ute Citizens v. United States, supra, at 155, the Supreme Court held that the correct measure of damages under § 28 of the Securities Exchange Act is the difference between the fair value of what the seller received for his stock and what he would have received had there been no fraudulent conduct, "except for the situation where the defendant received more than the seller's actual loss. In the latter case damages are the amount of the defendant's profit." The Court cited as authority for this latter measure of damages the decision in Janigan v. Taylor, 344 F.2d 781, 786 (1st Cir.), cert. denied, 382 U.S. 879, 86 S. Ct. 163, 15 L. Ed. 2d 120 (1965), where the First Circuit held:
"On the other hand, if the property is not bought from, but sold to the fraudulent party, future accretions not foreseeable at the time of the transfer even on the true facts, and hence speculative, are subject to another factor, viz., that they accrued to the fraudulent party. It may, as in the case at bar, be entirely speculative whether, had plaintiffs not sold, the series of fortunate occurrences would have happened in the same way, and to their same profit. However, there can be no speculation but that the defendant actually made the profit and, once it is found that he acquired the property by fraud, that the profit was the proximate consequence of the fraud, whether foreseeable or not. It is more appropriate to give the defrauded party the benefit even of windfalls than to let the fraudulent party keep them."
The court in Janigan recognized that there are limits to this principle,*fn17 but found that those limits were not reached where no extraordinary gains in the company's affairs attributable to defendant's own special efforts subsequent to the purchase occurred.*fn18
The district court recognized that the measure of damages here is governed by Janigan but held that it would be unjust to award Rochez the full value of the amount realized by Rhoades in the sale of MS&R stock to Esterline, since the increase in the value of MS&R was the result partly of Rhoades' aggressive and enterprising management ability and partly of the termination of the divided control. The district court, therefore, used its estimate of the value of the Simmonds offer as the basis to determine plaintiff's damages. The problem with this result is that the facts of this case do not exceed the limits that the First Circuit placed on its damages principle in Janigan. Even if Rhoades' aggressive management of MS&R could properly be characterized as constituting a special effort outside the regular duties for which he was paid, there is nothing in the record to indicate any such special efforts took place after the signing of the firm commitment on September 16, 1967.*fn19 Moreover, the ending of the divided control which the district court stressed as the cause of the increase in the value of MS&R subsequent to September 16 is surely not a valid reason for limiting plaintiff's recovery, since it was by his fraudulent non-disclosure that Rhoades obtained undivided control of MS&R. We do not believe that this is the type of personal effort that the court in Janigan intended to except from its rule of damages. Thus, the district court erred when it refused to compute Rochez's damages on the basis of the value Rhoades received for the MS&R stock from Esterline. The proper measure of damages is the difference between the value of 50% of MS&R stock on the basis of the Esterline purchase price and the amount Rochez received from Rhoades for his share of MS&R.
We can well understand the concern expressed by the dissenting opinion regarding the amount of damages. However, after careful consideration of the language of the Supreme Court in Ute, we have concluded that we are bound by the clear rule of damages enunciated in that case. Even assuming that there may be exceptions to the rule of damages set forth in Ute, as explicated in Janigan, we do not believe that this is a proper case for such an exception.
III. DISMISSAL AS TO CORPORATE DEFENDANT MS&R
The district court entered an order after the trial was completed dismissing the action as to MS&R, which order contained this language:
". . . . the Court being of the opinion that any wrongdoing of defendant Rhoades was on his own account as a stockholder and individual and not in the course or scope of his employment by the said corporate defendant MS&R Inc., or for the account or benefit of said corporate defendant or attributable in any wise to said corporate defendant, said corporate defendant being instead the passive object of such transfers of its stock as were effected through the activities (wrongful or otherwise) of said defendant Rhoades . . . ."
Plaintiff argues that this order of dismissal was erroneous, since the facts on the record establish liability of MS&R under two theories: first, that there was sufficient "participation" by MS&R to make the corporate defendant an aider, abettor, or conspirator with Rhoades; second, that MS&R was a controlling person within the meaning of § 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(a), which makes liable a "person" who "controls" one who violates a rule.*fn20
It is unnecessary for this court to decide this question at this time, for the district court failed to make findings to support its dismissal as required by Rules 41(b) and 52(a) of the Federal Rules of Civil Procedure. The opinion and judgment against defendant Rhoades, entered the same day as the order dismissing the action against corporate defendant MS&R, does not satisfy the provisions of Rule 52(a), for the findings of fact contained therein do not relate to and cannot support the conclusion stated by the district court in its order of dismissal.
We therefore will vacate the January 22, 1973 order dismissing the action as to MS&R (Document 72, W.D. Pa., Civil No. 68-1048) and remand so that the district court can make the necessary findings of fact. That part of the January 22, 1973, district court judgment (Document 73, W.D.Pa., Civil No. 68-1048) providing for damages of $402,000. will be vacated and the case will be remanded to the district court for proceedings not inconsistent with this opinion.
HASTIE, Circuit Judge, dissenting in part.
I agree that the district court correctly decided the questions of liability. My dissent is limited to the matter of damages. On this issue, all circumstances considered, it seems to me that the district court measured and limited its award of damages in a way that was equitable and proper.
Accordingly, I would affirm judgment in its entirety.