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NUTIS v. PENN MERCHANDISING CORP.

August 15, 1985

FRANK R. NUTIS, et al.
v.
PENN MERCHANDISING CORP., et al.



The opinion of the court was delivered by: LUONGO

 Plaintiffs, minority shareholders of Penn Merchandising Corporation ("Old Penn"), brought this federal securities action against certain officers, directors and controlling shareholders of Old Penn. In an Opinion and Order filed June 18, 1985 I dismissed plaintiffs' amended complaint for failure to state a cause of action. Plaintiffs have now moved for partial reconsideration and for leave to file a second amended complaint. For the reasons that follow, I will deny the motion.

 Plaintiffs seek to have the judgment of dismissal reconsidered on the basis of facts alleged in their proposed second amended complaint. Their motion is essentially one to "alter or amend the judgment" under Fed.R.Civ.P. 59(e). See Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Adams v. Gould, Inc., 739 F.2d 858, 863-64 (3d Cir. 1984), cert. denied, 469 U.S. 1122, 105 S. Ct. 806, 83 L. Ed. 2d 799 (1985); Parks v. "Mr. Ford," 68 F.R.D. 305, 308-09 (E.D.Pa. 1975), rev'd in part on other grounds, 556 F.2d 132 (3d Cir. 1977). In considering plaintiffs' motion, however, I must follow the mandate of Rule 15(a) that leave to amend "shall be freely given when justice so requires." Both a motion to alter a judgment and a motion for leave to amend a complaint are addressed to the sound discretion of the district court. Adams, 739 F.2d at 863-64; United States Labor Party v. Oremus, 619 F.2d 683, 692 (7th Cir. 1980).

 According to the Supreme Court, a motion to amend should be granted absent "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman, 371 U.S. at 182. Denial of plaintiffs' request for leave to amend is justified on the ground that the proposed second amended complaint does not set forth a claim on which relief can be granted. Amendment would therefore be futile.

 Plaintiffs seek to amend their complaint to include the following allegations. At some time in 1978, defendants formulated a plan to obtain control of Old Penn and take the company private, eliminating the minority shareholders. Pursuant to and without disclosing this plan, defendants purchased hundreds of thousands of shares of Old Penn common stock.

 Plaintiffs began to purchase Old Penn common stock in October of 1981. They anticipated a long-term return on their investment, having determined that Old Penn's management team was excellent and that its asset value far exceeded the market price for its common stock.

 In March, 1983, Old Penn offered to purchase up to 350,000 shares of its common stock for $4.00 per share. The tender offer materials stated that the company intended to acquire a pool of treasury stock for future use. Defendants' alleged plan to take Old Penn private was not revealed. Plaintiffs claim they were misled by defendants' statements and continued to purchase shares, believing that all shareholders would eventually profit as a result of defendants' management activities. Plaintiffs claim they would not have purchased shares had they known defendants would take Old Penn private within the next few months. Their claim of injury is based on their ownership of shares at the time of the merger agreement, when minority shareholders were allegedly forced out at an inadequate price.

 Plaintiffs' counsel discussed these allegations in somewhat less articulate fashion at time of oral argument. Although in ruling on defendants' motion to dismiss I could not formally consider allegations outside the amended complaint, I noted in my June 18 Opinion that plaintiffs' oral presentation gave me no indication that they could amend the complaint to state a federal securities law claim. Plaintiffs' more complete presentation of their proposed amendments in connection with the present motion does not convince me otherwise.

 Plaintiffs' proposed second amended complaint essentially alleges that defendants violated § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, by trading in Old Penn's securities without disclosing material inside information. In order to recover, plaintiffs must ultimately prove that defendants had a duty to disclose or abstain from trading, and that the allegedly undisclosed information was material. See, e.g., Chiarella v. United States, 445 U.S. 222, 63 L. Ed. 2d 348, 100 S. Ct. 1108 (1980); Affiliated Ute Citizens v. United States, 406 U.S. 128, 31 L. Ed. 2d 741, 92 S. Ct. 1456 (1972). Defendants do not deny that they are corporate insiders with an affirmative duty to disclose. I must therefore determine whether plaintiffs have adequately alleged that defendants breached their duty by trading on the basis of undisclosed material information.

 I dismissed plaintiffs' first amended complaint in part because it failed properly to allege that defendants withheld material information. The amended complaint did not allege that plaintiffs purchased or sold securities because of defendants' purported misdeeds. Instead, plaintiffs' securities claim was based on the injuries they allegedly sustained as "forced sellers" under the merger agreement. Because plaintiffs' votes were not needed to approve the merger, I applied the standard of materiality set forth in Healey v. Catalyst Recovery of Pennsylvania, Inc., 616 F.2d 641, 645-48 (3d Cir. 1980), and found the complaint defective in failing to allege that plaintiffs would have acted differently had defendants' merger plans been disclosed earlier.

 Plaintiffs now state that they purchased Old Penn stock from 1981 to 1983, and that those purchases would not have been made had defendants disclosed their plans. Although plaintiffs have thereby avoided the concerns addressed in Healey, their allegations are not sufficient to show that defendants' plans were material. Plaintiffs must still allege sufficient information to withstand the rule of Greenfield v. Heublein, Inc., 742 F.2d 751 (3d Cir. 1984), cert. denied, 469 U.S. 1215, 105 S. Ct. 1189, 84 L. Ed. 2d 336 (1985), that tentative merger plans are immaterial as a matter of law. *fn1"

 Under Greenfield, a duty to disclose a merger plan arises only when there is an "agreement in principle" to merge. Id. at 756-57. See also Staffin v. Greenberg, 672 F.2d 1196, 1205-07 (3d Cir. 1982). Contrary to plaintiffs' contention, the fact that defendants controlled both New Penn Merchandising Corporation, the acquiring company, and Old Penn, the target, is not sufficient to show that an agreement in principle existed. Greenfield describes an agreement in principle as an agreement on the fundamental terms of the merger, such as price and structure. Id. The court's concern that disclosure of preliminary discussions and plans can itself be misleading applies with full force to the "going private" merger at issue in this case.

 Plaintiffs have not alleged that a concrete agreement was reached. They merely state in conclusory fashion that defendants, since "sometime in 1978," have planned to take Old Penn private. I do not suggest that plaintiffs must set forth the precise details of a merger plan in order to avoid dismissal of the complaint. Plaintiffs must, however, do more than merely allege that defendants had a plan. Some information must be set forth which would permit an inference that defendants had formulated an agreement of sufficient specificity to incur a duty of disclosure. *fn2" Without such information, plaintiffs' allegations do no more than reiterate the basic theme of the amended complaint: that defendants planned to perpetuate their control at the expense of the minority shareholders. Such allegations do not state a claim under federal securities law. See, e.g., Panter v. Marshall Field & Co., 646 F.2d 271, 287-89 (7th Cir.), cert. denied, 454 U.S. 1092, 70 L. Ed. 2d 631, 102 S. Ct. 658 (1981); Biesenbach v. Guenther, 588 F.2d 400, 402 (3d Cir. 1978); Warner Communications, Inc. v. Murdoch, 581 F. Supp. 1482 (D.Del. 1984); Sanders v. Thrall Car Manufacturing Co., 582 F. Supp. 945 (S.D.N.Y. 1983), aff'd per curiam, 730 F.2d 910 (2d Cir. 1984); Issen v. GSC Enterprises, 508 F. Supp. 1278 (N.D.Ill. 1981).

 Accepting plaintiffs' allegations concerning defendants' activities, I find it difficult to characterize this as an "insider trading" case at all. Insider trading is considered fraudulent because of the "'inherent unfairness involved where one takes advantage' of 'information intended to be available only for a corporate purpose and not for the personal benefit of anyone.'" Dirks v. SEC, 463 U.S. 646, 654, 77 L. Ed. 2d 911, 103 S. Ct. 3255 (1983) (quoting In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S.E.C. 933, 936 (1968)). Plaintiffs, however, have not alleged that defendants traded on the basis of inside information. This is not a case in which defendants are accused of purchasing stock knowing that the corporation's imminent announcement of a merger agreement would cause the price of the stock to rise. Instead, to use plaintiffs' own words, "defendants were purchasing Old Penn common stock in execution of their plan to take Old Penn private." Plaintiffs' Motion for Partial Reconsideration at 11 (emphasis added). Plaintiffs have in effect alleged only that defendants were striving to increase their control of Old Penn. Although defendants may have breached certain fiduciary duties in the process, their failure to publicize their intentions is ...


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