Harlyn Sales Corp. Profit Sharing Plan v. Kemper Financial Services, Inc.

9 F.3d 1263, 27 Fed. R. Serv. 3d 1611, 1993 U.S. App. LEXIS 29979, 1993 WL 478341
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 18, 1993
DocketNo. 92-3228
StatusPublished
Cited by8 cases

This text of 9 F.3d 1263 (Harlyn Sales Corp. Profit Sharing Plan v. Kemper Financial Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harlyn Sales Corp. Profit Sharing Plan v. Kemper Financial Services, Inc., 9 F.3d 1263, 27 Fed. R. Serv. 3d 1611, 1993 U.S. App. LEXIS 29979, 1993 WL 478341 (7th Cir. 1993).

Opinion

EISELE, Senior District Judge.

This Appeal presents a very narrow issue: whether the trial judge abused his discretion in denying Rule 11 sanctions.

Procedural History

The case began when the plaintiffs filed a class action securities law complaint against five defendants including the Kemper defendants. Plaintiffs attempted to state claims on behalf of themselves and all other investors in the Government Plus Portfolio (hereinafter “Portfolio”) — one of the portfolios in the Investment Portfolios mutual fund. The defendants moved to dismiss for failure to allege any injury or fraud. The motion was assigned to a Magistrate Judge for a Report and Recommendation. Upon the request of the defendants, consideration of class certifi[1265]*1265cation was deferred pending the resolution of the motions to dismiss. On October 4, 1990, the Magistrate Judge recommended that those motions be granted as to all defendants. The plaintiffs objected to the Report and Recommendation, but the District Court, on September 13, 1991, after briefing, entered an order adopting the Report and dismissing the Complaint. The plaintiffs did not appeal.

On December 13, 1991, the Kemper defendants filed a motion for sanctions under Rule 11 against the plaintiffs and their attorneys based on alleged deficiencies in the complaint. This motion was also referred to the Magistrate Judge who, on May 29, 1992, issued a Report and Recommendation (the “Second Report,”) suggesting that the District Court find the plaintiffs’ complaint so obviously failed to allege any loss, misrepresentation, or material non-disclosure, that it could not have been based on adequate pre-filing inquiry. The Magistrate Judge recommended Rule 11 sanctions in the amount of $30,000 to be imposed against the plaintiffs’ attorneys. The plaintiffs objected to this Report and Recommendation. On August 20, 1992, the district court entered an order agreeing in part with the Magistrate Judge but rejecting the sanction recommendation. 142 F.R.D. 671. This appeal followed.

Review of Record

Plaintiffs’ complaint alleged violations of Rule 10b-5, Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934 and Sections 11 and 15 of the Securities Act of 1933. The action was filed on behalf of the named plaintiffs and on behalf of a class of all persons who purchased shares in the Portfolio over a two and one half year period. The complaint alleged that the defendants violated the securities laws by issuing a prospectus, registration statement, and sales literature which misled purchasers into believing that they would receive high current yields as Portfolio investors, coupled with the return of their principal upon redemption, without advising such investors that the Fund could return a portion of the purchasers’ principal in a monthly “dividend” payment in order to maintain the high current yield. The plaintiffs claimed that they were injured by the alleged misrepresentations and omissions because they invested when they otherwise would not have done so and because they would have to pay deferred sales charges if they decided to withdraw from the Portfolio during the first six years after purchase.

There was no allegation that Portfolio had actually ever returned principal. Nor was there any allegation that any plaintiff had actually withdrawn from the Portfolio and thereby incurred any deferred sales charge. Plaintiff expressly sought both compensatory and injunctive relief, the latter “in the form of an order requiring defendants to make appropriate disclosure of the misstated or omitted facts and to permit withdrawal by class members without penalty.”

The Kemper defendants’ motion to dismiss and supporting brief argued that the complaint was deficient in failing to allege any injury, any actionable misrepresentations or omissions, or compliance with the applicable statutes of limitations. The defendants pointed out that plaintiffs suffered no injury because their investments had not decreased in value as a result of the alleged fraud, no principal had been returned and no plaintiff had incurred any contingent deferred sales charges. And they argued that the “mere possibility of a return of principal” in a dividend was not material. Finally, they contended that plaintiffs’ position that they would not have invested in the Fund “but for” defendants’ fraud did not state a sufficient “loss causation” claim under Bastian v. Petren Resources Corp., 892 F.2d 680 (7th Cir.1990).

Plaintiffs responded to defendants’ motions to dismiss by arguing that the materials did contain actionable misrepresentations and failed to disclose the ability to return principal. They also claimed that they suffered damages when they invested because they thereby became subject to deferred sales charges upon early withdrawal. They argued that they had adequately pled transaction and loss causation in accordance with LHLC Corp. v. Cluett, Peabody & Co., 842 F.2d 928 (7th Cir.1988) and Rankow v. First Chicago Corp., 870 F.2d 356 (7th Cir.1989). Plaintiffs claimed they suffered economic [1266]*1266damage in the form of an obligation to pay contingent sales charges.

The Magistrate Judge agreed with the defendants that the statements in the offering materials relating to “high yields” were goals, not promises, as a matter of law. Her report noted that principal had not been returned. And, since the plaintiffs conceded that such a return would not be subject to a deferred sales charge, they had “not explained how that could result in any damage to them.” (App. p. 15) The Magistrate Judge, therefore, concluded that the plaintiffs failed to allege any injury. (App. p. 16-17) She cited the LHLC case but did not mention Bastían. She recommended that the complaint be dismissed as to all defendants.

In their objections to this Report and Recommendation plaintiffs repeated the contentions referred to above and also argued that the Complaint did not allege that the defendants had promised to maintain a high current yield. They contended that plaintiffs’ claims were based not on the Fund’s goals but on the combination of disclosure of the goal of seeking a high yield with the nondisclosure of the fact that one means used to attain the goal might be the return of principal. And they argued that plaintiffs suffered economic harm under Rarikow because they invested in a fund that could return principal rather than in one which could not, and, to get out of the Fund they would have to pay a sales charge.

The district court essentially agreed with the Magistrate Judge and dismissed the complaint. When the Kemper defendants moved for Rule 11 sanctions some three months later, that motion was also referred to the Magistrate Judge.

The Magistrate Judge in her Second Report and Recommendation, issued May 29, 1992, concluded, without hearing, that Rule 11 sanctions were required because plaintiffs “could not demonstrate loss causation” and could not show “any misrepresentation, any material nondisclosure, or any loss.” She rejected defendants’ argument that plaintiffs’ failure to adequately plead compliance with the statute of limitations for their section 11 claims was sanetionable.

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9 F.3d 1263, 27 Fed. R. Serv. 3d 1611, 1993 U.S. App. LEXIS 29979, 1993 WL 478341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harlyn-sales-corp-profit-sharing-plan-v-kemper-financial-services-inc-ca7-1993.