Cullinan v. Abramson

128 F.3d 301, 1997 U.S. App. LEXIS 28614
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 16, 1997
DocketNos. 95-5416 through 95-5419
StatusPublished
Cited by35 cases

This text of 128 F.3d 301 (Cullinan v. Abramson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cullinan v. Abramson, 128 F.3d 301, 1997 U.S. App. LEXIS 28614 (6th Cir. 1997).

Opinion

DAVID A. NELSON, Circuit Judge.

The plaintiffs — independent investment managers who handle a portion of the assets of a Louisville, Kentucky, police pension fund — brought a federal civil rights/RICO lawsuit against the city, its outside lawyers, the mayor, and other city officials, all of whom were said to have been involved in efforts to have the plaintiffs fired as investment managers for the pension fund. The defendants moved for dismissal of the complaint under Rule 12, Fed.R.Civ.P., asserting, among other defenses, absolute and qualified immunity from suit on both the federal claims and numerous pendent state law claims by which the federal claims were accompanied.

The district court largely denied the motions to dismiss, and each of the defendants except the city perfected an interlocutory appeal from the denial of immunity. The plaintiffs then moved to dismiss the appeals on finality and substantiality grounds, but another panel of this court ruled against the plaintiffs on these issues.

We now conclude that the appellant defendants are entitled to qualified immunity on the federal claims. The denial of such immunity will be reversed. In remanding the case, we shall give the district court'an opportunity to consider the appropriate disposition of the state' law claims’ in light of our ruling on the federal claims.

I.

The plaintiffs’ allegations .are set forth in a 33-page complaint, á 14-page affidavit, and 13 exhibits. We accept as true, for present purposes, all well-pleaded; non-conclusory allegations contained in the plaintiffs’ papers.

A. Background — Plaintiffs

In the mid-1960s, it appears, the City of Louisville established a pension system for its police officers. The system, which is operated by a governing body commonly referred to as the board of trustees, is funded with appropriations from the city and with contributions from participating police officers.

The trustees of the pension fund engaged Stock Yards Bank &-Trust Co. to manage a portion of the fund’s assets. In 1977 plaintiff R. Keith Cullinan, who was employed by the bank as a trust officer for a number of [304]*304years,1 was placed in charge of investing these holdings.

Since January of 1990 Mr. Cullinan has been the president and chief executive officer of plaintiff Cullinan Associates, Inc., an investment management firm of which Mr. Cullinan is a shareholder. Through Cullinan Associates he has continued to manage a portion of the police pension fund’s assets. Cullinan Associates is compensated for its services by fees that are generally set as a percentage of the‘assets under its management.

In his work for the pension fund, both as an employee of the bank and as an employee of Cullinan Associates, Mr. Cullinan has made extensive use of a technique known as covered call option writing. A call option is a contract that gives the purchaser of the option the right to buy shares of stock in a specified company at a specified price within a specified period of time. If the market price of the stock fails to rise above .the specified price before the option has expired, the holder of the option will have no incentive to exercise the call, and the seller (or “writer”) of the option will get to keep the premium paid by the purchaser without having to part with any shares of stock. If the market price of the stock does rise above the price specified in the option, on the other hand, the holder of the option can be expected to exercise the call — and the writer of the option, while still retaining the premium, will have to part with the stock for less than its current worth.2

If the writer of the option does not already own the stock — if the option is “naked,” in the argot of the trade — the writer will have to buy shares on the open market in the event of a call. But the option writer need not buy shares if the option is “covered;” the writer of a covered option can meet the call with stock the writer already owns. The writing of covered options is thus considered more conservative than the writing of naked options.

Both techniques generate brokerage commissions that would not have to be paid if the options were not written. Stockbrokers benefit from option writing whether share prices rise, fall, or stay the same. If the market price of a security on which options have been written does not rise too much during the option period, the writer of the option likewise stands to benefit.

Although views differ as to the extent to which option writing makes sense from the option writer’s standpoint, a majority of the members of the board of trustees of the police pension fund appear to have been well satisfied with the performance of the portion of the assets managed by Mr. Cullinan. A study conducted by a brokerage firm in March of 1988 showed that over the preceding ten years the assets managed by Mr. Cullinan produced an annual return of 14.75%. Another brokerage firm calculated that the return had been 15.01% per annum. The net return for 1992 was 11.5%, and for 1993 it was 13.2%. The record does not disclose what the returns would have been had Mr. Cullinan made the same stpck selections without employing the covered option writing technique,3 but the Cullinan affidavit says that during 1992 and 1993 the police pension fund made profits of $2,397,680 on covered call options that expired without having been exercised.

In addition to managing assets for the police officers’ pension fund, Mr. Cullinan provided investment management services to the Louisville Firefighters’ Pension Fund during a period that began in 1978 and ended in August of 1986. He used the covered call option .writing technique for the firefighters’ assets as well. The record does not disclose what percentage of the fund’s total assets he managed, but Stock Yards Bank received more than half the city’s 1985 contribution to the firefighters’ fund. For the five years [305]*305ended March 31, 1985, we are told, the performance of the total portfolio of the firefighters’ fund was ranked near the top of a group of 100 comparable funds.

B. Background — Defendants

In November of 1985 defendant Jerry E. Abramson was elected mayor of the City of Louisville. After taking office in January of 1986 he appointed defendant Stuart P. Jay to the position of director of finance and budget for the city.

Mr. Jay, described in a 1983 magazine article as “one of Louisville’s young millionaires,” is said to have been chairman of RETS Electronic Institute until he sold it in 1985. He apparently decided to donate his services to the city — a decision that may or may not have been influenced by the fact that his home was located several hundred feet outside the city limits and he thus failed to meet a statutory residency requirement. The residency issue came to public attention in 1992, and Mr. Jay then relinquished the director of finance position to become a special assistant to the mayor.

At the time of his appointment as director of finance, Mr. Jay was on record as having disputed the efficacy of covered call option writing. (The complaint describes him as “a long-time opponent of this investment strategy.... ”) The director of finance is a member of the police pension fund board of trustees ex officio, and from the inception of his service on the board Mr. Jay attempted— unsuccessfully, as it turned out — to have Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
128 F.3d 301, 1997 U.S. App. LEXIS 28614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cullinan-v-abramson-ca6-1997.