UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA
March 16, 1981
ANCHOR-DARLING INDUSTRIES, INC.
The opinion of the court was delivered by: MCGLYNN
MEMORANDUM OF DECISION
Presently before the court is defendant's motion for partial summary judgment pursuant to Fed.R.Civ.P. 56. The motion raises an important issue of federal securities law on which there is a divergence of opinion: Does the sale of an incorporated business by means of a transfer of the stock of the corporation fall within the purview of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder?
Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment is available only when there are no material fact issues in the litigation. Adickes v. S. H. Kress and Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). The court, for purposes of determining a summary judgment motion, must view the record in the light most favorable to the party opposing the motion. Id. With these principles in mind, the following are the undisputed material facts as developed from the pleadings, affidavits, and documents submitted to the court.
On November 16, 1977, the plaintiff, Anchor-Darling Industries, Inc. ("Anchor-Darling"), entered into an "Agreement To Purchase Stock" ("Agreement") by which Anchor-Darling purchased defendant Leonard Suozzo's ("Suozzo") controlling stock of three closely-held corporations, Bergen Pipe Support Corp. ("BPC"), Bergen Iron & Engineering Co. ("BIEG"), and International Nuclear Safeguards Corp. ("INC."). The Agreement was executed to effectuate the terms agreed to by Suozzo and representatives of Anchor-Darling in September of 1977 after extensive negotiations. During these negotiations, Anchor-Darling informed Suozzo that they sought to purchase his business in its entirety and that they would therefore also be purchasing the remaining equity interests in the three corporations held by Suozzo's two daughters and several of his longtime employees to whom Suozzo had given shares.
The stock purchased from Suozzo consisted of the following shares:
CLASS OF SHARES NO. OF SHARES NO. OF SHARES
PURCHASED PURCHASED ISSUED AND
INC Common 3,478 3,500
BIEG Class "A" Common 4,210 5,000
BIEG Class "B" Common 37,770 44,067
BPC Common 3,800 4,000
BPC Class "A" Common 17,550 25,316
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