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SCOTCH v. MOSELEY

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


December 13, 1988

PAUL J. SCOTCH and SCOTCH MOTOR COMPANY, INC., Plaintiffs
v.
MOSELEY, HALLGARTEN, ESTABROOK & WEEDEN, INC. AND FELIX H. SATER, Defendants

The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

 WILLIAM J. NEALON, CHIEF UNITED STATES DISTRICT JUDGE.

 Currently before the court is defendants' motion to dismiss count II of plaintiffs' complaint, which asserts a cause of action pursuant to section 12(2) of the Securities Act of 1933. See, 15 U.S.C. § 771(2). *fn1" For the reasons that follow, defendants' motion will be denied.

 BACKGROUND

 The factual and procedural history of this case is contained in this court's Order of October 7, 1988. See document 11 of record. Briefly, plaintiffs contend that defendants failed to properly explain and disclose all of the risks inherent in securities trading, opened a margin account without proper authorization and "suitability," and used manipulative and deceptive devices to conceal the different transactions that had taken place in plaintiffs' accounts. See generally document 1 of record; see also document 9 of record, at p. 1.

 By its Order of October 7, the court directed the parties to file supplemental briefs regarding the application of the United States Supreme Court's recent decision in Pinter v. Dahl, 486 U.S. 622, 108 S. Ct. 2063, 100 L. Ed. 2d 658 (1988) to an action under section 12(2) in general and to the instant factual situation in particular. See document 11 of record, at p. 4. Defendants filed their supplemental memorandum on October 17, 1988. See document 12 of record. On November 1, 1988, plaintiffs filed a supplemental memorandum in opposition to the motion to dismiss. See document 14 of record. Defendants' reply time having elapsed without further submission to the court, their motion to dismiss is now ripe for disposition.

 DISCUSSION

 On a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the burden of proof lies with the moving party. Johnsrud v. Carter, 620 F.2d 29, 33 (3rd Cir. 1980). In ruling upon a motion to dismiss, all of the well-pleaded allegations of the complaint must be accepted as true and construed in the light most favorable to the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Truhe v. Rupell, 641 F. Supp. 57, 58 (M.D. Pa. 1985) (Rambo, J.). The motion should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S. Ct. 1848, 1853, 48 L. Ed. 2d 338 (1976); see also Kuchka v. Kile, 634 F. Supp. 502, 506 (M.D. Pa. 1985) (Nealon, C.J.).

 Defendants first argue that, because they are not "sellers" within the meaning of section 12(2), plaintiffs' count based on section 12(2) must be dismissed. Defendants rely on Collins v. Signetics Corp., 605 F.2d 110, 113 (3d Cir. 1979), which held that, in the absence of some special relationship between the issuer and the actual seller of securities, a purchaser not in privity with the issuer has no claim under section 12(2) against the issuer. See id. at 113-114. The court believes, however, that defendants' argument must be rejected based on the Supreme Court's subsequent decision in Pinter v. Dahl.

 In Pinter, the Supreme Court held that section 12 "at the very least . . . contemplates a buyer-seller relationship not unlike traditional contractual privity," 108 S. Ct. at 2076, but its scope was not limited to persons who pass title. Id. Instead, since "solicitation is the stage at which an investor is most likely to be injured," id. at 2078, the Court concluded that the term "seller" must include the person "who successfully solicits the purchase, motivated at least in part by a desire to serve his own financial interests or those of the securities owner." Id. at 2079.

 Pinter was decided in the context of a section 12(1) action. While the court did not expressly "take a position on . . . the scope of a statutory seller for purposes of § 12(2)," it did state as follows:

 

The "offers or sells" and the "purchasing such security from him" language that governs § 12(1) also governs § 12(2), which provides a securities purchaser with a similar rescissionary cause of action for misrepresentations . . . . Most courts and commentators have not defined the defendant class differently for purposes of the two provisions . . . . The question whether anyone beyond the transferor of title, or immediate vendor, may be deemed a seller for purposes of § 12 has been litigated in actions under both § 12(1) and § 12(2). Decisions under § 12(2) addressing the "seller" question are thus relevant to the issue presented to us in this case, and, to the extent, we discuss them here.

 Id. 486 U.S. at 642 n. 20 (citations omitted). *fn2" In addition, the courts that have dealt with this issue subsequent to Pinter have uniformly applied its rationale in the section 12(2) context. See, e.g., Abell v. Potomac Insurance Co., 858 F.2d 1104, 1113-1115 (5th Cir. 1988); Capri v. Murphy, 856 F.2d 473, 478 (2d Cir. 1988); Laven v. Flanagan, 695 F. Supp. 800, 812-813 (D.N.J. 1988); In re Worlds of Wonder Securities Litigation, 694 F. Supp. 1427, 1434-1435 (N.D. Cal. 1988); In re Professional Financial Management, Ltd., 692 F. Supp. 1057, 1063-1064 (D. Minn. 1988). This court agrees that Pinter should be applied to the present section 12(2) action. Defendants first argument must therefore be dismissed, since privity is no longer required to render one a "seller" under section 12(2).

 

Defendants also argue that the 1933 Act was not designed to regulate broker transactions in the secondary markets of the national securities exchanges . . . [but] was intended to provide civil remedies only for representations and omissions in the registration statements and prospectuses of initial offerings and recovery was restricted to the recision [sic] of the transaction or the offering price of the securities.

 See document 7 of record, at pp. 4-5 (citations omitted). Thus, defendants conclude that, "in the absence of an allegation of fraud arising out of an initial offering, plaintiffs cannot state a claim for relief under the 1933 Act." Id. at p. 5. The court must again disagree.

 The Supreme Court has repeatedly stated that the starting point in every case involving construction of the federal securities laws is the language of the statute itself. See, e.g., Pinter v. Dahl, 108 S. Ct. at 2075; Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S. Ct. 1375, 1382, 47 L. Ed. 2d 668 (1976). Section 12(2) reads, in pertinent part, as follows: "Any person who . . . offers or sells a security . . . by means of . . . [an] oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements . . . not misleading . . . shall be liable to the person purchasing such security from him . . . ." 15 U.S.C. § 77 l (2). Thus, section 12(2) is not limited by its terms to initial offerings, and the court's language in Pinter would seem to go against such a restrictive reading. See Pinter v. Dahl, 108 S. Ct. at 2077, 2078-2079; see also Wilko v. Swan, 127 F. Supp. 55, 58-60 (S.D.N.Y. 1955); Steinberg, Section 17(a) of the Securities Act of 1933 After Naftalin and Redington, 68 Geo. L.J. 163, 180 (1979) ("Nothing in [section 12(2)] specifically limits the prohibition of such 'oral communications' to those occurring only during the initial distribution"); supra at n. 2.

 In addition, while it is true that the 1933 Act was primarily concerned with regulating the distribution of new securities, its scope is not so limited. See Schaefer v. First National Bank of Lincolnwood, 509 F.2d 1287, 1292 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S. Ct. 1682, 48 L. Ed. 2d 186 (1976) (citing Jordan Building Corp. v. Doyle, O'Connor & Co., 401 F.2d 47, 51 (7th Cir. 1968)) (remedies supplied by the 1933 and 1934 Acts are cumulative and not mutually exclusive); Wilko v. Swan, supra; see also H. Bloomenthal, Securities Law Handbook § 11.05 at 284, 287-288 (1987-1988 ed.) (section 12(2) is "applicable to fraud committed in connection with the sale of securities by broker-dealers in organized trading markets"); Abrams, The Scope of Liability Under Section 12 of the Securities Act of 1933: "Participation" and the Pertinent Legislative Materials, 15 Fordham Urb. L.J. 877, 901-902 & n.138 (1987); O'Hara, Erosion of the Privity Requirement in Section 12(2) of the Securities Act of 1933: The Expanded Meaning of Seller, 31 UCLA L.Rev. 921, 927-929 & n. 18 (1984) (section 12(2)'s application to open market purchases limited only by privity requirement, which Pinter has now relaxed); Steinberg, The Propriety and Scope of Cumulative Remedies Under the Federal Securities Laws, 67 Cornell L. Rev. 557, 585-586 n. 179 (1982) ("Based on the Naftalin Court's language *fn3" and § 12(2)'s position in the Securities Act, it is arguable that the provision applies only to the initial distribution process. Such a construction, however, would be contrary to the plain language of the statute and the weight of judicial and scholarly authority"). Based on these authorities, the court agrees that, rather than arbitrarily limiting section 12(2) to initial offerings, it should apply section 12(2) to open market purchases subject only to the limitations imposed by the "seller" requirement. Since that requirement has been satisfied for purposes of defendants' motion to dismiss, see supra slip op. at pp. 4-6, the court will reject defendants' second and final argument and deny their motion to dismiss.

 An appropriate Order will enter.

 ORDER

 NOW, this 13th day of December, 1988, in accordance with the accompanying Memorandum, IT IS HEREBY ORDERED THAT defendants' motion to dismiss count II of plaintiffs' complaint for failure to state a claim upon which relief can be granted is denied.


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