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KRAMER v. SCIENTIFIC CONTROL CORP.

June 6, 1978

MITCHELL A. KRAMER and DAVID C. HARRISON
v.
SCIENTIFIC CONTROL CORP.; ARTHUR ANDERSEN & CO.; H. L. FEDERMAN & CO.; KLEINER, BELL AND CO., INC.; JOHN B. BAIRD; DONALD G. O'NEAL; L. J. RATNER; NORMAN C. YOUNG; CLYDE WILLIAMS; VAN CALVIN ELLIS; H. L. FEDERMAN; PATRICK S. MARTIN; WILLIAM C. WEATHERFORD; ERNEST E. SPECKS; HENRY W. HOOKER; MERRILL J. WHISTON; ARTHUR E. SPECKHARD; WILLIAM S. LEE; JOSEPH T. JONES; and GEORGE JAGGERS



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 Presently before the Court are the motions of defendants Arthur Andersen and Company ("Andersen"), Ernest E. Specks ("Specks"), William C. Weatherford ("Weatherford") and Van Calvin Ellis ("Ellis") *fn1" for summary judgment pursuant to Fed.R.Civ.P. 56. *fn2" For the reasons stated below, these motions will be granted in part and denied in part.

 Andersen's Motion

 In support of its motion for summary judgment, in which Specks, Ellis and Weatherford join, Andersen argues, first, that plaintiffs' claims pursuant to §§ 12(2) *fn4" and 15 *fn5" of the 1933 Act, 15 U.S.C. §§ 77l(2), 77o, must be dismissed because the plaintiffs have failed to establish that: (a) there was a buyer-seller relationship between plaintiffs and the moving defendants; or (b) that the moving defendants had control over plaintiffs' seller or any other defendants. We agree. We have previously ruled that a prerequisite to the imposition of liability based upon § 12(2) is strict privity between the buyer and the immediate seller. Kramer v. Scientific Control Corp., 365 F. Supp. 780, 791 (E.D.Pa. 1973), citing Dorfman v. First Boston Corp., 336 F. Supp. 1089, 1091-1096 (E.D.Pa. 1972). While we are aware that other courts have upheld an exception to the privity requirement where the complaint alleges a conspiracy among the defendants, see In Re Caesars Palace Securities Litigation, 360 F. Supp. 366, 378-383 (S.D.N.Y. 1973); cf. B. & B Investment Club v. Kleinert's Inc., 391 F. Supp. 720, 725-726 (E.D.Pa. 1975), we adhere to the reasoning and holding of Dorfman, supra in which Chief Judge Joseph S. Lord, III, specifically rejected the conspiracy exception. Dorfman v. First Boston Corp., supra, 336 F. Supp. at 1092. The pleadings, depositions and exhibits in this case clearly establish that the plaintiffs purchased their Scientific stock from Merrill, Lynch, Pierce, Fenner & Smith, a brokerage firm which was not an underwriter of the Scientific stock nor named as a defendant in this suit. See e.g. Kramer deposition, pp. 30, 41-42. In addition, neither the original complaint nor the amendments to it allege that privity existed between plaintiffs and the moving defendants. We find, therefore, that Andersen, Specks, Weatherford and Ellis have satisfied their burden of establishing that there is no genuine issue with respect to the material fact of the lack of privity between plaintiffs and the moving defendants and that they are entitled to summary judgment in their favor on plaintiffs' claims under § 12(2).

 We find, further, that the moving defendants have also met their burden of establishing that there is no genuine issue as to whether Andersen, Specks, Weatherford or Ellis had control over plaintiffs' seller or any other defendant in this case which would subject them to liability based upon § 15. Liability based upon § 15 *fn6" requires that the direct seller be liable under § 12(2) and that a control relationship have existed between the direct seller and the defendants. Dorfman v. First Boston Corp., supra, 336 F. Supp. at 1093. Because the complaint fails to name the direct seller as a defendant, to allege liability based upon § 12(2) against the direct seller or to allege that Andersen, Specks, Weatherford or Ellis had a control relationship with the direct seller or any of the defendants, the moving defendants are entitled to summary judgment in their favor on plaintiffs' claims pursuant to § 15.

 Next, Andersen argues that plaintiffs' claims pursuant to § 17(a) *fn7" of the 1933 Act, 15 U.S.C. § 77q(a) must be dismissed because, as a matter of law, § 17(a) does not create an implied private right of action, particularly where the plaintiff has also alleged a claim pursuant to § 11 of the 1933 Act, 15 U.S.C. § 77k. We have previously held that §§ 17(a)(1) and (3) permit private actions for fraud in the offer or sale of securities and that § 17(a)(2) permits private actions subject to the limitations of § 12. Kramer v. Scientific Control Corp., supra, 365 F. Supp. at 791, citing Dorfman v. First Boston Corp., supra, 336 F. Supp. at 1093-1096. Since our ruling in Kramer, supra, both the Supreme Court, see Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734, 44 L. Ed. 2d 539, 95 S. Ct. 1917 n.6 (1975), and the Third Circuit, see Schultz v. Cally, 528 F.2d 470, 475 n.11 (3d Cir. 1975), have expressly left open the issue of whether private actions under § 17(a) may be maintained where liability is also predicated upon the express civil remedies of the 1933 Act. Because the issue remains a viable one, we decline to rule at this time that a private right of action may not be maintained under § 17(a) where liability is also alleged under the civil remedy provisions of the 1933 Act. Accordingly, we will deny defendants' motion for summary judgment on plaintiffs' claims under §§ 17(a)(1) and (3), but will grant summary judgment in defendants' favor on plaintiffs' claims under § 17(a)(2) in light of our ruling that the moving defendants are not subject to liability on plaintiffs' claims pursuant to § 12(2).

 Finally, Andersen argues that plaintiffs' claims pursuant to § 10(b) of the Exchange Act, 15 U.S.C. § 78j, and Rule 10b-5, 17 C.F.R. § 240.10b-5 must be dismissed because those provisions, as a matter of law, do not create a private right of action for buyers of securities who have asserted claims under § 11 of the 1933 Act and § 18 of the Exchange Act, 15 U.S.C. § 78r. It is well settled that a private right of action is created by both § 10(b) and Rule 10b-5. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 196, 47 L. Ed. 2d 668, 96 S. Ct. 1375 (1976); Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S. at 730. However, the Supreme Court has expressly left open the issue of whether the implied right of action under § 10(b) and Rule 10b-5 may be asserted where the complaint also alleges claims based upon the liability provisions of the 1933 Act. Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S. at 737 n.8 and 752 n.15. Because the Supreme Court has expressly left this issue open, and because there clearly is an implied right of action under both § 10(b) and Rule 10b-5, we decline to hold that plaintiffs may not maintain those claims where alternative or additional theories of recovery are also alleged pursuant to the 1933 Act. Accordingly, we will deny defendants' motions for summary judgment on plaintiffs' claims pursuant to § 10(b) and Rule 10b-5.

 Weatherford's and Ellis' Motions

 In their motions for summary judgment, Weatherford and Ellis argue that: (1) plaintiffs' claims under § 11 of the 1933 Act and § 18 of the Exchange Act are barred by the applicable statutes of limitations; (2) neither Weatherford nor Ellis was a director of Scientific when any report was filed with the SEC and, therefore, is not subject to liability under § 18 of the Exchange Act, 15 U.S.C. § 78r; and, (3) plaintiffs have failed to establish that Weatherford or Ellis possessed the requisite intent to violate § 10(b) of the Exchange Act, Rule 10b-5 or § 17(a) of the 1933 Act. In support of their motions for summary judgment, Weatherford and Ellis have submitted affidavits which state the following facts: Both Weatherford and Ellis were directors of Scientific on October 31, 1968, the date of the prospectus which is the subject of this lawsuit. Weatherford resigned as director on April 17, 1969, and Ellis resigned as a director on December 16, 1968. Neither Weatherford nor Ellis was named as a defendant in the original complaint filed August 9, 1971, but each was named as a defendant in the amended complaint filed November 12, 1971. Neither Weatherford nor Ellis had any knowledge of the instant lawsuit prior to being served with the amended complaint on December 1 and November 30, 1971, respectively.

 We hold, first, that plaintiffs' claims against Weatherford and Ellis pursuant to §§ 11 and 18 are not barred by the applicable statute of limitations because the defendants have failed to establish that there is no issue of fact as to whether the amended complaint relates back to the filing date of the original complaint. The applicable statute of limitations for § 11 claims is § 13 of the 1933 Act, 15 U.S.C. § 77m, *fn8" while the applicable statute of limitations for claims based upon § 18 of the Exchange Act is § 18(c), 15 U.S.C. § 78r(c). *fn9" Both statutes of limitations provide, in essence, that claims based upon §§ 11 or 18 must be brought within three years of the date that the action accrued. In this case, the statutes of limitations began running on October 31, 1968, the date the registration statement was effective, and expired three years later on October 31, 1971, a date prior to the date that the original complaint was filed but subsequent to the date that Weatherford and Ellis were served with the amended complaint. The issue before us, therefore, is whether Weatherford and Ellis have established that the amended complaint does not relate back to the filing date of the original complaint, pursuant to Fed.R.Civ.P. 15(c). We hold that they have not.

 The relation back of an amendment to a complaint is governed by Fed.R.Civ.P. 15(c) which states:

 
(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on ...

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