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PAUL v. BERKMAN

October 29, 1985

ROBERT A. PAUL, as custodian and trustee for LAURENCE E. PAUL, STEPHEN E. PAUL and KAREN R. PAUL; MARSHALL L. BERKMAN, as custodian and trustee for LAURA G. BERKMAN, ELLEN F. BERKMAN and MARTHA L. BERKMAN; DONNA B. PAUL; THE LOUIS BERKMAN COMPANY; THE LOUIS AND SANDRA BERKMAN FOUNDATION, and THE M&I MARSHALL AND ILSLEY BANK, as trustee for the LOUIS BERKMAN COMPANY PENSION TRUST, Plaintiffs
v.
JACK N. BERKMAN, MYLES P. BERKMAN and ASSOCIATED COMMUNICATIONS CORPORATION, Defendants



The opinion of the court was delivered by: ZIEGLER

 This court is called upon to resolve an intrafamily dispute arising from the sale of 1,018,540 shares of Associated Communications Corporation (ACC) stock. Plaintiffs, members of the Louis Berkman family, argue that defendants, members of the Jack Berkman family, induced the sale by making fraudulent representations and omissions in violation of state law and Section 10(b) of the Securities Exchange Act of 1934 and regulations thereunder. 15 U.S.C. ยง 78j. Defendants have moved for summary judgment. We find that there are genuine issues of material fact for resolution by a fact-finder and therefore defendants' motion will be denied.

 I. History of Case

 We begin by noting that nearly every fact asserted by one party is disputed by the other. The record reveals a history of animosity between the two branches of the Berkman family. It is not surprising, therefore, that both parties have approached the instant dispute with fervor. For example, defendants' "Statement of Undisputed Facts" contains the following: "This is nothing more than a case where plaintiffs, with the benefit of 20/20 hindsight, seek to ratify their mistaken business judgment and reap a windfall profit at the expense of defendants." Defendants' Reply Memorandum at 8. Similarly, plaintiffs display their zeal by informing the court of the following "fact": "In this case, defendants used their controlling position in ACC vindictively, to punish plaintiffs for perceived slights and wounds of the past." Plaintiffs' Memorandum at 5. Some facts do emerge.

 Prior to the sale of the stock in question, plaintiffs owned or held a total of 1,018,540 shares, equal to about 21 percent of ACC's common shares. Before the sale, defendants, Jack and Myles Berkman, owned a total of 747,596 shares of Class A and Class B stock. Under a 1978 agreement, the Jack Berkman family was empowered to nominate two-thirds of ACC's board of directors and the Louis Berkman family was empowered to nominate one-third. The board has consisted of two representatives of the Jack Berkman family, Jack and Myles, and one representative of the Louis Berkman family, Louis. Also under the 1978 agreement, the Jack Berkman family held a right to purchase any ACC stock that the Louis Berkman family desired to sell before any sale could be made to a third party. This right of purchase by the Jack Berkman family was subject to the corporation's right of first refusal.

 Plaintiffs allege that, in late 1983, they began to consider selling their stock. Plaintiffs then notified ACC and the Jack Berkman family of their intention to sell. To determine a fair purchase price, negotiations between the two families ensued. The parties disagree as to the terms and timing of preliminary offers and rejections, but it is clear that the parties signed a stock purchase agreement on June 5, 1984. The agreement provides for the sale of 1,018,540 shares of ACC stock at $10 per share. The complaint alleges that, pursuant to the agreement, ACC purchased from plaintiffs 72,000 shares on June 28, 1984, and 473,270 shares on December 12, 1984. The agreement also provides for the purchase of plaintiffs' remaining 473,270 shares at $10 a share on June 26, 1985. It appears that plaintiffs have not tendered these remaining shares.

 Sometime after December 12, 1984, plaintiffs allege they discovered that defendants concealed the fact that ACC had been negotiating with a third party, KISS Limited Partnership (KISS), to sell most of ACC's eleven radio stations at a substantial price. Discovery to date indicates that the KISS negotiations were serious and ongoing in May 1984, a month before the stock purchase agreement was signed. The parties hotly contest the date on which an agreement in principle was reached for the sale of the eight radio stations to KISS.

 The sale of eight radio stations was publicly announced on August 3, 1984, defendants allege. The purchase price was $29.5 million in cash and notes. The market price at ACC stock rose dramatically after the sale of the stations was announced. On June 5, 1984, when plaintiffs agreed to sell their stock, the bid price was $9 a share. On the first day of trading after the sale was announced, the bid price rose to $13.37. At the time the complaint was filed, the bid price was approximately $20.50. By agreeing to sell their stock at $10 a share, plaintiffs allegedly lost nearly $18 million.

 Seeking rescission of the stock purchase agreement, plus compensatory and punitive damages, plaintiffs filed a six-count complaint on February 12, 1985. Plaintiffs claim that defendants had a duty to disclose material facts relating to the negotiations for the sale of the radio stations. Plaintiffs also claim that a press release of June 5, 1984, issued by defendants, was false and misleading in that it failed to disclose that KISS had offered to buy substantially all of ACC's radio stations at a high price. In addition, plaintiffs claim the statement falsely represented that increased bank borrowings would be necessary, when in fact defendants planned to use the proceeds of the sale of the radio stations to purchase plaintiffs' stock and to pay off a large portion of ACC's outstanding loans.

 Defendants have asserted counterclaims for anticipatory breach of the stock purchase agreement and for declaratory relief. Defendants, Jack and Myles Berkman, also filed a third-party complaint against Louis and Marshall Berkman for contribution.

 II. Summary Judgment Motion

 After extensive discovery by both parties, defendants have moved for summary judgment. In support of their motion, defendants make two arguments. First, defendants had no obligation or duty to disclose to plaintiffs that ACC was engaged in preliminary negotiations to sell eight of its radio stations before plaintiffs agreed to sell their stock. Second, plaintiffs ratified the stock purchase agreement when they accepted $4,732,700 in cash for their stock more than four months after they first learned of defendants' alleged fraud. Both arguments are directed against plaintiffs' claims under Section 10(b) of the Securities Exchange Act of 1934 and Securities Exchange Commission Rule 10b-5. Defendants also contend that, if summary judgment is granted as to the federal claims, the state law claims should be dismissed for want of subject matter jurisdiction, citing United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).

 A motion for summary judgment may be granted only if there are no issues of material fact which, if believed by the trier of fact, would justify a finding for the party opposing the judgment. Wahl v. Rexnord, Inc., 624 F.2d 1169 (3d Cir. 1980). All evidence must be viewed in a light most favorable to the party opposing the motion, and every reasonable inference must be afforded to the opposing party. Sanford v. O'Neill, 616 F.2d 92 (3d Cir. 1980). A movant must make a "clear showing" that ...


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