The opinion of the court was delivered by: Buckwalter, S.J.
Currently pending before the Court is the Motion of Defendants Benton Partners II, LLP and I. Isabelle Benton for Summary Judgment. For the following reasons, the Motion is granted and judgment on the entirety of the Second Amended Complaint is entered in favor of Defendants and against Plaintiff.
I. FACTUAL AND PROCEDURAL HISTORY
A. Factual Background*fn1
1. History and Facts About the Philadelphia Stock Exchange
The Philadelphia Stock Exchange, Inc. ("PHLX") was founded in 1790 and, since then, has continuously conducted business in the city of Philadelphia. (Sec. Am. Compl. ¶ 15; Answer ¶ 15.) The PHLX is registered under section 78f of the Exchange Act as a self-regulatory organization ("SRO") and, as such, is overseen by the Securities and Exchange Commission ("SEC"). (Sec. Am. Compl. ¶¶ 17-18; Answer ¶¶ 17-18.) In addition to the federally promulgated rules and regulations, the PHLX also operates under its own set of rules and has an elected and appointed governing body. (Sec. Am. Compl. ¶ 21; Answer ¶ 21.) The PHLX officials include a chair, two vice-chairs, and members of the governing Board, who are responsible for the general operation of the PHLX. (Sec. Am. Compl. ¶¶ 23, 25; Answer ¶¶ 23, 25.) In addition, the Board designates members and non-members to serve on Standing Committees, such as Executive, Finance, Business Conduct, Floor Procedure, and Options. (Sec. Am. Compl. ¶ 24; Answer ¶ 24.)
Through January 20, 2004, the PHLX was operated as a not-for-profit mutual association incorporated in Delaware. (Sec. Am. Compl. ¶ 16; Answer ¶ 16.) There were 505 seats on the PHLX, with one of the seats owned by the PHLX itself. (Id.) Those who owned a "seat" on the PHLX effectively possessed an equity interest in the association and maintained the right to trade on the PHLX floor. (Id.) In November 2003, the seat owners ratified a demutualization plan, which converted seat holders into stock holders, making trading privileges separate from equity ownership. (Defs.' Statement of Undisputed Facts ("DSUF"), Ex. 1, Decl. of Meyer Frucher, ¶¶ 11-12, Apr. 14, 2010 ("Frucher Decl.").) The SEC approved the changes associated with the PHLX's demutualization on January 20, 2004. (Id. ¶ 13.) On January 24, 2004, the PHLX issued a press release announcing the demutualization, which quoted Meyer Frucher, former PHLX Chairman and CEO, as follows:
We are now primed to move aggressively to capitalize on our strengths -- our highly regarded proprietary technology that supports our equity, option and regulatory systems and our multiple licenses to trade stocks, options and futures -- all are assets that we intend to leverage with potential strategic partners. (Id. ¶ 14.) As explained by Frucher, demutualization gave the PHLX a "currency," in the form of newly-created PHLX shares, which it could use to attract and facilitate alliances with strategic partners. (Id. ¶ 15.)
2. The PHLX's Efforts to Attract Investors
As of 2004, the PHLX was still experiencing financial difficulties. (DSUF Ex. 5, Dep. of I. Isabelle Benton, 19:8-20, June 11, 2010 ("Benton Dep.").) Accordingly, Frucher began to contact a variety of organizations to see if they might be interested in becoming strategic partners of the PHLX. (Frucher Decl. ¶ 16.) In November of 2004, Frucher learned that Archipelago Holdings, Inc. ("Arca"), a PHLX competitor, might be interested in merging with the Pacific Exchange, Inc. (Id. ¶ 17.) In or about the week before Thanksgiving 2004,*fn2 Frucher called Arca Board Member Richard Breeden to inquire as to whether Arca might consider a strategic transaction with the PHLX. (Id. ¶ 18.) Although Breeden could not speak to Arca's interest, he indicated that he would contact Arca management to inquire. (Id. ¶ 20.) The week following Thanksgiving, Breeden called Frucher back to report that Arca management was interested in exploring the prospect of a strategic transaction with the PHLX. (Id. ¶ 21.)
In late November and early December 2004, Frucher had additional "introductory discussions" with representatives of Arca, both by telephone and in person, in which they gathered information about the PHLX and its technology. (Id. ¶ 22.) Arca and the PHLX entered into a confidentiality agreement, dated December 3, 2004, requiring the parties to keep confidential all non-public information divulged by the other party. (DSUF Ex. 24.) Frucher described these Arca discussions as follows:
The first contact with Archipelago was made by me the week before Thanksgiving and there was no meetings or any discussion about anything in November of 2004, only one telephone call from me to a member of the Board asking if there might be an interest to have a discussion. So the first meeting that we had was in December -- actually, I can give you the exact date if it would be helpful, December 7 was the first getting-to-know-you meeting which was serendipitous because they happened to have been in Philadelphia on that date for another meeting.
So there was no discussion other than one phone call in November. There was one meeting in December in -- on December 7th in Philadelphia in which we basically -- blue sky, there was no -- I wouldn't call it -- it can't possibly be, by any standard of a definition, a negotiation or an extensive negotiation. There was no -- other than here's who we are, here's what you are, here's what we have, this is what we're interested in, this is what we're doing.
The next meeting was in the middle of December and that meeting was not a negotiation. I would call it more of a due-diligence kind of meeting such that the only discussion in December was them becoming familiar with us and what assets of value we had. So I would describe the actual events as, you know, telephone introduction November, the beginning of a process of them getting to know the Exchange and our assets in December, and no real conversations about the merger, a merger or what one merger would look like until mid January to late January, and then intensive negotiations from that point on that did not culminate in a deal. (DSUF Ex. 6, Dep. of Meyer Frucher, 56:24-58:12, Oct. 10, 2007 ("Frucher Dep.").) Frucher's characterization of the conversations is corroborated by e-mails exchanged within the internal ranks of Arca. From December 10, 2004 to December 13, 2004, several Arca officers discussed the upcoming due diligence sessions with the PHLX, who would be involved in those sessions, and the "long" list of what would need to be accomplished before even considering a non-binding term sheet. (Pl.'s Resp. Mot. Summ. J., Ex. 3.)
Defendant Benton was not a participant in any of these discussions with Arca. (DSUF Ex. 3, Decl. of I. Isabelle Benton, ¶ 19 (July 12, 2010) ("Benton Decl.").) Indeed, on December 15, 2004, during a meeting of the PHLX Board of Governors, Frucher advised the Board, for the first time, that Arca was exploring the possibility of a strategic transaction with the PHLX. (Frucher Decl. ¶ 23; Benton Dep. 80:5-14.) Frucher also indicated that future transactions for PHLX stock would be barred for Board members. (Id. at 78:12-23.) Benton explained that, based on Frucher's representations, she understood there to be preliminary discussion only and that, if the talks developed into anything substantial, senior management would inform the Board. (Id. at 81:15-24.)
Substantive discussions between the PHLX and Arca did not begin until mid to late January 2005. (Frucher Dep. 56:14-58:12.) At the February 2005 Board meeting, a strategic committee was formed, together with a subcommittee of Board members, to negotiate with Arca. (Benton Dep. 83:14-22; DSUF Ex. 25.) At the end of February 2005, Arca first presented a preliminary non-binding term sheet to the PHLX. (DSUF Ex. 5, Dep. of Nelson Chai 147:8-22, Mar. 13, 2007 ("Chai Dep.").) During this entire process, Arca continued to perform financial, technical, and regulatory due diligence. (Id. at 155:20-157:14.) Upon completion of due diligence in March 2005, Arca offered the PHLX $50 million dollars and the assumption of pension liabilities. (Id. at 156:14-157:9.)
In an April 18, 2005 memorandum issued by the Special Committee on Strategic Alliances, the PHLX indicated that "since late November 2004, management, with guidance from the Committee, conducted an extensive negotiation with Archipelago Holdings Inc. which has resulted in a relatively firm offer to acquire all the stock of the PHLX for $50 million in Archipelago stock (and/or partial cash)." (DSUF Ex. 25.) This offer was considered and rejected by the Board of Governors on April 20, 2005, as being inferior to other alternatives available to the PHLX and as not in the best long-term interests of PHLX's shareholders. (DSUF Ex. 13.) As such, no acquisition of PHLX by Arca ever occurred. (Id.; DSUF Ex. 4, Dep. of William Floyd-Jones 205:13-21, May 28, 2010 ("Floyd-Jones Dep.").)
3. Background of Plaintiff Mill Bridge V, Inc.
Van der Moolen Options U.S.A., LLC ("VDM") was a Delaware limited liability company that was also an indirect, wholly-owned subsidiary of Van Der Moolen Holding, N.V. (DSUF Ex. 28.) While the PHLX was still a no-stock membership corporation, VDM acquired six PHLX seats and used them to act as an equity options specialist and a market maker for options at the PHLX. (Floyd-Jones Dep. 130:12-131:13; DSUF Ex. 2, Decl. of Janet Bennett ¶ 5, June 9, 2010 ("Bennett Decl.") .) By 2002, VDM also acquired two Philadelphia Board of Trade ("PBOT") membership shares for use in trading currency futures. (Floyd-Jones Dep. 131:25-132:10, 135:17-136:2.)
In December of 2003, VDM elected to end its activities as an equity options specialist and equity options market maker at the PHLX. (Bennett Decl. ¶ 7.) On December 12, 2003, VDM sold all of its PHLX specialist books to Susquehanna Investment Group, another trader at the PHLX. (Floyd-Jones Dep. 122:22-123:8.) By the end of the year, VDM no longer employed anyone to engage in trading at the PHLX, and, as of April 1, 2004, Janet Bennett was the only Philadelphia-based employee of VDM. (Bennett Decl. ¶¶ 8, 10; Floyd-Jones Dep. 124:8-12.). On January 23, 2004, VDM made a formal request to cancel its Permit Holders and to remove VDM as a member of the PHLX. (DSUF Ex. 30; Floyd-Jones Dep. 120:16-23.)
On August 22, 2005, pursuant to provisions of the Delaware General Corporation Law, VDM merged with, and into, Plaintiff Mill Bridge V, Inc. ("Mill Bridge V"). (Sec. Am. Compl. ¶ 13; Answer ¶ 13; Floyd-Jones Dep. 35:15-20.) The merger agreement provided that all of the property, rights, and privileges of VDM vested in Plaintiff Mill Bridge V. (Sec. Am. Compl. ¶ 14; Answer ¶ 14.) Mill Bridge V has no employees and was always a holding company that never actually engaged in any business. (Floyd-Jones Dep. 51:7-16.) It is a wholly-owned subsidiary of Van der Moolen Holdings, N.V. (Id. at 53:20-54:4.) In August 2009, Van Der Moolen Holding N.V. went through a liquidation-type bankruptcy in the Netherlands analogous to American Chapter 7-type proceedings. (Id. at 25:15-22.)
4. VDM's Sale of PHLX Stock to Defendants
Prior to closing its Philadelphia operations in 2004, VDM undertook to dispose of its assets. On Friday, December 3, 2004, during a telephone call with Frank Dorje, who was the CFO of Van Der Moolen Holdings, N.V., Janet Bennett was notified that VDM would end all of its operations and discharge all of its employees by December 31, 2004. (Bennett Decl. ¶¶ 11-12.) Accordingly, Dorje directed Bennett to liquidate all U.S.-based assets of VDM by December 31, 2004, and noted that such liquidation was "very important." (Id. ¶ 13 & Exs. A-B; DSUF Ex. 22.) Among the assets to be disposed of were six hundred shares of PHLX stock and two PBOT memberships. (Bennett Decl. ¶ 16.) Dorje remarked that any VDM assets that were not sold as of December 31, 2004 would have to be abandoned so as to recognize a tax loss by year end. (Id. ¶ 17; Floyd-Jones Dep. 137:12-138:8, 153:4--24.) At that time, VDM believed that the PHLX stock it owned was worthless or "as close to worthless as you could get." (Floyd-Jones Dep. 131:21-24; DSUF Ex. 31; DSUF Ex. 8, Dep. of Janet Bennett, 23:16-24:12, July 8, 2010 ("Bennett Dep.").)
On Monday, December 6, 2004, Bennett planned to speak with the PHLX regarding the sale of VDM's PHLX stock and PBOT seats. (DSUF Ex. 22.) That day, she met with PHLX employee and head of Shareholder Services Robert Kreszswick to find out how to sell VDM's PHLX and PBOT shares. (Bennett Decl. ¶ 18; Bennett Dep. 48:23-49:14.) During that meeting, Bennett indicated that she needed to sell all six hundred shares of PHLX stock "as quickly and easily as possible." (Bennett Decl. ¶ 21.) Kreszswick explained that trades of PHLX had to be done in one hundred share increments, which would be negotiated directly between the buyer and the seller, rather than through the PHLX. (Id. ¶ 20.) Immediately following this conversation, Kreszswick forwarded an e-mail to Bennett with the contact information for the six persons or entities that were currently bidding for PHLX stock. (Id. ¶ 22; DSUF Ex. 23; Bennett Dep. 51:6-15.) The bids for PHLX stock as of that date ranged from $10,000 to $18,750 per 100 shares. (DSUF Ex. 23.) Kreszswick suggested that Bennett call Defendant Benton and then, depending on the response, work her way down the list. (Bennett Dep. 51:10-12; DSUF Ex. 23.) He further offered to help her with the paperwork once she had secured her commitments. (DSUF Ex. 23.) On the same day, Bennett also submitted an executed "Membership Sale Authorization" form asking the PHLX to purchase its two PBOT membership shares for $500 each. (DSUF Ex. 32.) In light of the significant amount of work involved with disposing of the assets of VDM by December 31, 2004, Bennett hoped to sell the PHLX shares quickly and in one transaction to dodge the inconvenience of six separate transactions. (Bennett Decl. ¶ 28.) Dorje had, in fact, already authorized Bennett to sell the PHLX shares in a single transaction at less than maximum potential price in order to avoid the time and effort associated with multiple transactions. (Id. ¶¶ 29-30.)
Defendant Isabelle Benton, a member of the PHLX's Board of Governors, was the only one of the list of current bidders known to Bennett. (Id. ¶ 24.) Bennett had worked in an office several doors down from Benton's in the PHLX building. (Id. ¶ 25.) In the fall of 2004, Benton was present at the PHLX offices approximately one to two times per month. (Benton Dep. 53:3-18.) Between September 1, 2004 and the December 2004 sale of VDM's PHLX shares, she had attended the only two PHLX Board meetings -- one on September 22, 2004 and one on November 10, 2004. (Benton Decl. ¶ 17.) Prior to 2004, Benton and her company Benton Partners II, LLP ("BPII") had invested substantial sums to purchase PHLX seats and, at the time of its November 2004 stock purchases, BPII already owned 200 shares of PHLX stock. (DSUF Ex. 15; Benton Decl. ¶¶ 21-23; DSUF Ex. 10, Dep. of Corp. Rep. of BPII, 14:17-22, June 11, 2010 ("BPII Dep.").)
During the first half of November 2004, Benton had submitted a written request to the PHLX for approval to buy PHLX shares, which was two weeks before the initial contact between Arca and the PHLX. (Benton Decl. ¶ 5; Benton Dep. 32:11-33:19; DSUF Ex. 16.) In that letter, Benton affirmatively stated, "I do not believe that I am aware of privileged or confidential information that would affect the investment value of the PHLX stock." (DSUF Ex. 16.) Sometime on or around November 17, 2004, Benton was given approval by the PHLX to trade. (DSUF Ex. 14; Benton Dep. 32:11-16, 33:16-24; Benton Decl. ¶ 6.) On November 30, 2004, Benton purchased 100 shares from an individual named Richard Feinberg. (Answer ¶¶ 26-27.)
Bennett initiated contact with Benton by placing a phone call to her on December 6, 2004. (DSUF Ex. 23; Benton Decl. ¶ 7.) On some date between December 7, 2004 and December 9, 2004, Bennett met with Defendant Benton in her office, explained VDM's immediate need to quickly sell its six hundred shares of PHLX stock, and emphasized her desire to sell all six hundred shares in one transaction. (Bennett Decl. ¶¶ 32-33; Bennett Dep. 73:22-74:18; Benton Dep. 57:16-58:4.) Bennett was the only employee of VDM that spoke directly with Defendant Benton regarding the sale of the 600 shares of PHLX stock and is the only VDM employee with actual personal knowledge as to the negotiations and efforts to sell that stock. (Floyd-Jones Dep. 143:4-13, 160:10-161:4, 166:21-167:5.) Benton fully disclosed to Bennett that she was a member of several PHLX committees. (Bennett Dep. 78:21-82:8.) She then said that although she was interested, she needed to speak with her business associate about the purchase of all 600 shares. (Bennett Decl. ¶ 34.) Shortly after speaking with Bennett, Defendant Benton offered an individual named Daniel Carrigan -- an acquaintance from the PHLX -- the opportunity to purchase 200 of the 600 shares of PHLX stock that VDM was selling. (Benton Dep. 64:24-65-24; DSUF Ex. 9, Dep. of Daniel Carrigan, 26:19-29:24, June 11, 2010 ("Carrigan Dep.").) Carrigan opted not to participate in the transaction. (Benton Dep. 65:17-24, 111:13-23.) Benton later contacted Bennett to indicate that she would purchase all of VDM's PHLX stock and, on some date between December 7 and December 9, 2004, offered $12,500 per 100 shares, for a total of $75,000. (Bennett Decl. ¶¶ 35-36; Benton Decl. ¶ 9, Floyd-Jones Dep. 165:12-24; Benton Dep. 64:7-5-8.) Bennett counter-offered and said that she could sell the shares at $13,000 per 100. (Benton Dep. 64:17-23, Floyd-Jones Dep. 165:12-24; Benton Decl. ¶ 10, Bennett Decl. ¶ 37.) Prior to coming to a price agreement with Defendants, VDM was aware that bids and offers for PHLX stock were posted on the PHLX website. (Floyd-Jones Dep. 184:20-185:7.) Ultimately, sometime between December 7, 2004 and December 9, 2004, Benton and Bennett confirmed that BPII would buy VDM's 600 shares of PHLX for $13,000 per 100 shares, for a total of $78,000. (Bennett Decl. ¶¶ 37-38; Bennett Dep. 78:15-79:12.) After this oral agreement was reached, BPII, through Defendant Benton, offered another PHLX investor, Richard Ross, the opportunity to purchase some of these shares, but Mr. Ross declined. (Benton Dep. 65:25-66:25; 111:24-112:4.)
According to her testimony, Benton's decision to purchase VDM's shares was influenced by the fact that the PHLX XL options trading system had become completely up and running with no glitches, resulting in an increased volume of trades and options.*fn3 (Benton Dep. 90:3-16.) At that time, BPII was profitable and had more than a million dollars cash on hand. (Id. at 31:10-25, 88:13-21.) The price paid by BPII for VDM's PHLX stock in December 2004 represented less than 1% of BPII's total assets and less than 2.5% of BPII's total equity. (Benton Decl. ¶ 18.)
On December 9, 2004, Bennett informed Dorje that she had sold all of VDM's shares of PHLX to BPII for a total of $78,000. (DSUF Ex. 22.) That same day, VDM signed the PHLX transferor representation certificate, evidencing the sale. (DSUF Ex. 18.) By way of letter dated December 10, 2004, Benton indicated to the PHLX that she was buying 600 additional shares in PHLX stock from VDM "after solicitation by and negotiation with" Janet Bennett and that she was not aware of any privileged or confidential information that would affect the investment value of the stock. (DSUF Ex. 19.) BPII delivered three checks in the total amount of $78,000 on December 10, 2004, representing full payment for the sale of PHLX stock. (DSUF Ex. 33; Bennett Dep. 113:12-25; Benton Dep. 73:16-19.) The following Monday, December 13, 2004, PHLX's Shareholder Services and Legal Departments authorized the transaction to proceed and documentation was overnighted to the transfer agent for PHLX, making the effective date for the transfer of title December 14, 2004.*fn4 (Pl.'s Resp. Mot. Summ. J., Exs. 8-10.)
On September 5, 2005, Steven Mirow -- Plaintiff's counsel in the present case -- filed a complaint on behalf of Richard Feinberg asserting insider trading claims against BPII and Benton. Compl., Feinberg v. Benton, No. CIV.A.05-4847 (E.D. Pa. Sep. 9, 2005) ("Feinberg Complaint"); see also Feinberg v. Benton, No. CIV.A.05-4847, 2007 WL 4355408 (E.D. Pa. Dec. 13, 2007) (Memorandum and Order denying summary judgment). The Feinberg Complaint claimed violation of Rule 10b-5 and control person liability against the defendants in connection with a November 30, 2004 sale by Feinberg to BPII of 100 shares of PHLX stock. The case proceeded to a non-jury trial. On July 2, 2008, the Court entered judgment for the defendants on all claims, finding that the defendants were not aware of any material inside information at the time they purchased stock from the plaintiff. Judgment, Feinberg v. Benton, No. CIV.A.05-4847 (July 2, 2008).
On June 16, 2008, Mill Bridge V, LLC ("Mill Bridge LLC"), represented by Steven Mirow, brought suit against BPII and Benton claiming a violation of § 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; seeking rescission under § 29(b) of the Securities Exchange Act, 15 U.S.C. § 78cc(b); and alleging control person liability under § 20(a) of the Exchange Act, 15 U.S.C. § 78t. The Complaint asserted that BPII bought 600 shares of PHLX stock from VDM on December 10, 2004, without disclosing material non-public information, and that Mill Bridge LLC was the successor in interest to VDM. Defendants moved to dismiss the Complaint on various grounds and, in lieu of a response, Plaintiff's counsel asked for additional time to obtain documents from VDM in the Netherlands and determine if Mill Bridge LLC was the proper plaintiff. This Court dismissed the Complaint without prejudice and allotted a set period of time in which to file an amended complaint.
Plaintiff's counsel filed a new pleading entitled "First Amended Complaint," on October 20, 2008. This document was brought on behalf of current Plaintiff Mill Bridge V, Inc. and raised the identical claims. Defendants again brought a motion to dismiss, which was granted with instructions for Plaintiff to file a new complaint pled with more specificity. Plaintiff thus filed the current Second Amended Complaint, on May 20, 2009, which re-asserted the three causes of action from the prior iterations, and added a new claim under the Pennsylvania Securities Act, 70 Pa.C.S. §§ 1-401(a), 501(a). On June 4, 2009, Defendants moved to dismiss the Second Amended Complaint. By way of Memorandum and Order dated December 3, 2009, the Court dismissed Plaintiff's causes of action under § 29(b) of the Securities Exchange Act, 15 U.S.C. § 78cc(b) and under the Pennsylvania Securities Act, 70 Pa.C.S. § 1-401, 501. Mill Bridge V, Inc. v. Benton, No. CIV.A.08-2806, 2009 WL 4639641 (E.D. Pa. Dec. 3, 2009). Further, although the Court declined to dismiss Plaintiff's causes of action under § 10(b) and 15 U.S.C. § 78t, the accompanying Memorandum decision held that Plaintiff could base liability only on Defendants' alleged omission of their knowledge of the material merger negotiations between Arca and the PHLX since none of the other alleged misstatements or omissions withstood legal scrutiny. Id.
Defendants filed the present Motion for Summary Judgment on July 16, 2010. By stipulation of the parties, Plaintiff responded on August 30, 2010 and Defendants submitted a Reply Brief on September 16, 2010. The Court now turns to a discussion of this Motion.
II. STANDARD OF REVIEW ON A MOTION FOR SUMMARY JUDGMENT
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c)(2). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.
On summary judgment, the moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). ...