GUARDIAN INVESTMENT CORPORATION v. Rubinstein

192 A.2d 296, 1963 D.C. App. LEXIS 256

• Court: District of Columbia Court of Appeals
• Decided: June 19, 1963
• Docket: 3153, 3154
• Status: Published

Opinions

QUINN, Associate Judge.

Guardian Investment Corporation and Earl Lombard, its president, appeal from a denial of their motions to set aside summary judgments against them for conduct in violation of Sections 12(2) ¹ and 15 2 of the Securities Act of 1933, 48 Stat. 74, as amended, 15 U.S.C. §§ 77a-77aa. Although neither party questioned the jurisdiction of the trial court to hear the controversy, we raised .the question sua sponte and ordered reargument of the case. We deemed it necessary to explore the jurisdictional problem since it is well settled that jurisdiction may neither be assumed by a court nor conferred upon it by consent or silence of the parties.³

While the Securities Act has a special jurisdictional section,⁴ the particular right created by Section 12(2) is enforceable “in any court of competent jurisdiction.” ⁵ This phrase has been interpreted by the Supreme Court to mean: “The Act’s special right is enforceable in any court of competent jurisdiction — federal or state— and removal from a state court is prohibited.” ⁶ Thus, the issue presented is whether the Municipal Court for the District of Columbia ⁷ is analogous to a state court of competent jurisdiction within the meaning of Section 12(2).

Significantly, we have had occasion to consider a similar question. In Hall v. Chaltis,⁸ a suit under the Emergency Price Control Act of 1942, the applicable section similarly provided that an action might he brought “in any court of competent jurisdiction.” We ruled that Congress had thereby authorized any federal or state court to take the case if its jurisdiction embraced the amount of the claim. A fortiori, we held that the Municipal Court had jurisdiction to entertain the suit. We find no reason to depart from this ruling, and hold that the trial court was a court of competent jurisdiction within the meaning of Section 12(2) of the Securities Act of 1933, the amount in controversy being below $3,-000.

The substantive question presented by appellants is whether there was a genuine issue as to a material fact precluding the award of summary judgment to appellees. The complaint, answer and interrogatories established the following facts. Appellants, dealers in securities, solicited appellees by means of communications in interstate commerce for the purpose of purchasing certain shares of stock. Appellees subsequently bought the offered shares and paid appellants in full. While appellees received confirmation of their purchases, they never received the stock certificates. Their suit is for the return of the purchase price.

Appellants admit confirmation of the sale and receipt of the money, but in answer to the specific question, “Did you deliver the stock?” they have replied, “No record of such delivery.” They contend that appel-lees have failed to show that at the time of the sale there was an untrue statement of a material fact.

Appellants' argument has lost sight of the fact that the Act was designed to protect investors, and, being remedial, its provisions will be liberally construed.⁹ The Securities and Exchange Commission, whose interpretation is entitled to great weight,¹⁰ has stated:

“ ‘Inherent in the relationship between a dealer and his customer is the vital representation that the customer will be dealt with fairly, and in accordance with the standards of the profession.’ Duker & Duker, 6 S.E.C. 386, 388 (1939). At a minimum, he represents that he will act in accordance with reasonable trade custom. Trade custom requires a dealer to consummate transactions with customers promptly, and in every transaction an implied representation to this effect is made, unless there is a clear understanding to the contrary. If a dealer intends not to consummate a transaction promptly, and fails to disclose this intention to his customer, he omits to state to that customer a material fact necessary to make the above representation not misleading, in violation of the anti-fraud provisions of the Securities Act and the Exchange Act.” ¹¹

It is clear from the record that appellants did not intend to consummate the transactions promptly. We hold that their conduct falls squarely within the conduct proscribed by Section 12(2) and that the award of summary judgment was proper.

The other assignments of error relating to appellants Kenney and Burke are without merit.

Affirmed.

1 . Section 12(2), 15 U.S.C. § 77? provides: “Any person who * * * (2) offers or sells a security * * * by the use of any means or instruments of transportar tion or communication in interstate commerce or of the mails, by means of a prospectus or 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, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.”

2 . Section 15, 15 U.S.C. § 77o provides: “Every person who, by or through stock ownership, agency, or otherwise, or who, pursuant to or in connection with an agreement or understanding with one or more other persons by or through stock ownership, agency, or otherwise, controls any person liable under sections 77k or 771 of this title, shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist.”

3 . See United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263 (1936); Henderson v. E Street Theatre Corporation, D.C.Mun.App., 63 A.2d 649 (1948); 1425 F Street Corporation v. Jardin, D.C.Mun.App., 53 A.2d 278 (1947).

4 . 15 U.S.C. § 77v provides: “(a) The district courts of the United States, and the United States courts of any Territory, shall have jurisdiction of offenses and violations under this subchapter and under the rules and regulations promulgated by the Commission in respect thereto, and, concurrent with State and Territorial courts, of all suits in equity and actions at law brought to enforce any liability or duty created by this subehapter. * * * No case arising under this sub-ehapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. * * * ”

5 . See n. 1, supra.

6 . Wilko v. Swan, 346 U.S. 427, at 431, 74 S.Ct. 182, at 184-185, 98 L.Ed. 168 (1953).

7 . Now the District of Columbia Court of General Sessions.

8 . D.C.Mun.App., 31 A.2d 699, 704 (1943). See also, Glidden Company v. Zdanok, 370 U.S. 530, 581, 82 S.Ct. 1459, L.Ed.2d (1962); O’Donoghue v. United States, 289 , 545, 53 S.Ct. 740, 77 L.Ed. 1356 (1933); Western Urn Mfg. Co. v. American Pipe & Steel Corp., 109 U.S.App.D.C. 145, 147, 284 F.2d 279, 281 (1960); King v. Wall & Beaver Street Corporation, 79 U.S.App.D.C. 234, 237, 145 F.2d 377, 380 (1944); Herman v. Siney, D.C.App., 190 A.2d 650 (1963).

9 . Creswell-Keith, Inc. v. Willingham, 264 F.2d 76, 80 (8 Cir., 1959); Blackwell v. Bentsen, 203 F.2d 690, 693 (5 Cir., 1953), appeal dismissed, 347 U.S. 925, 74 S.Ct. 528, 98 L.Ed. 1078 (1954).

10 . Securities and Exchange Commission v. Timetrust, Inc., 28 F.Supp. 34, 39 (N.D.Cal.1939).

11 . In the matter of Lewis H. Ankeny, 29 S.E.C. 514, 516 (1949).