Manor Drug Stores v. Blue Chip Stamps

492 F.2d 136

Opinions

OPINION

BROWNING, Circuit Judge:

The district court, 339 F.Supp. 35, dismissed appellants’ complaint under section 10(b) of the Securities Exchange Act of 1934,¹ 15 U.S.C. § 78j(b), and Securities and Exchange Commission Rule 10b-5,² claiming damages for alleged

fraud in connection with an offering of stock of appellee Blue Chip Stamps to appellant and the class it seeks to represent. The court held that because appellant and other members of the class did not purchase the stock they lacked standing to sue under the rule announced in Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952).³ We conclude that it does not appear “beyond doubt” that appellant “can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). We therefore reverse.

The alleged facts are as follows.⁴

In 1963 the United States filed a complaint charging Blue Chip Stamp Company, Thrifty Drug Stores Co., Inc., and eight grocery chains with conspiracy to restrain trade and monopolization in the trading stamp business in California, in violation of the Sherman Act. This litigation was settled in 1967 by entry of a consent decree. See United States v. Blue Chip Stamp Co., 272 F.Supp. 432 (C.D.Cal.1967).

The defendants in the antitrust suit, other than Blue Chip Stamp Company, were major California retail merchandisers who used Blue Chip stamps to stimulate patronage in their businesses. They owned 90 per cent of Blue Chip Stamp Company's stock.

Other retailers who used Blue Chip stamps in their business but owned no stock in Blue Chip Stamp Company (a group that includes appellant and others in the class it seeks to represent) appear before the court in the antitrust proceeding as amicus curiae. They contended that Blue Chip Stamp Company was to have been a non-profit venture on behalf of all users of Blue Chip stafnps, and that they (the non-stock-holding users) in fact owned an equitable interest in Blue Chip Stamp Company and in the $20,000,000 in profits it had accumulated. They asked that this interest be recognized in the decree.

These claims and contentions on behalf of the non-stockholding retail users of Blue Chip stamps “prompted the provisions” of the consent decree requiring the reorganization of Blue Chip Stamp Company. Under the reorganization plan eventually approved, Blue Chip Stamp Company was to be merged into a new company — Blue Chip Stamps. The defendant stockholder-users were to be cent of the common stock of the new in the enterprise. This was to be accomplished by issuing to others 55 per company; 621,600 shares of the common stock of the new company were to be offered to the retail users of Blue Chip Stamps who were not stockholders of the old company. The shares were to be offered on a pro-rata basis determined by the quantity of stamps issued to each of these non-stockholding users during a designated period. The offering was to be made in units consisting of three shares of common stock and a $100 debenture for a cash payment of $101. Any of the 621,600 shares not purchased by the non-stockholding users were to be divested of 55 per cent of their interest sold on the open market.

The offer of debentures and stock to non-stockholding users was intended by the court and government to be, and was, a bargain. Each unit offered to the non-stockholding user for $101 had a reasonable market value of $315, as defendant-appellees knew.

Users who were stockholders in the old company (including the defendantappellees in this case)⁵ did not want the non-stockholding users to exercise their right to purchase stock in the new company. To accomplish their purpose they caused to be prepared and circulated a prospectus “calculated to mislead and dissuade users not knowledgeable of the true value of said shares from purchasing said shares.” The prospectus repeatedly emphasized certain “Items of Special Interest” as having an adverse effect upon the value of the offered stock.⁶ “Constant reference to said items was intended to, and did cause plaintiffs to be misled as to the true value of said shares.” When defendant-appellees offered “their own” shares to the public a year later,⁷ the prospectus then issued made no reference to any of these “Items of Special Interest,” although they were as relevant (or irrelevant) on the date of the second prospectus as they had been on the date of the first.

Defendant-appellees, by these and other means, intended to and did mislead plaintiff-appellant and other user-offer-ees as to value of the stock. Plaintiff-appellant and others in the class it represents, relying upon these representations, “were induced and did, in fact, not accept said offer and purchase said Units,” and were thereby damaged in the amount of the difference between the offering price of the units and their fair market value.

We are not satisfied that these allegations establish on their face that appellant is barred from maintaining the action by the judicially created “purchaser-seller” prerequisite to standing to sue for damages under section 10(b) and Rule 10b-5.

The complaint alleges the use of a fraudulent scheme involving untrue statements and omissions in offering securities of Blue Chip Stamps for sale.

The statute and rule were intended to protect the purity of stock transactions from just such manipulative and deceptive practices that deprive potential investors of a reasonable opportunity to make informed and intelligent investment decisions.⁸ It is obviously irrelevant to this purpose that the object of the deceptive practices was to prevent purchases rather than to induce them.⁹ And Congress and the Commission cannot have intended to prohibit such fraudulent practices if they failed but not if they succeeded. The language of the statute and rule does not require such a bizarre result. The statute and rule are not confined in terms to consummated purchases or sales. They have often been applied where, as here, “plaintiffs alleged that they had sought to enter a securities transaction as purchasers or sellers, but that the transaction was aborted as a result of the fraud of the defendants.” Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339, 345 (9th Cir. 1972), citing Opper v. Hancock Securities Corp., 367 F.2d 157 (2d Cir.), affirming 250 F.Supp. 668 (S.D.N.Y.1966); Commerce Reporting Co. v. Puretec, Inc., 290 F.Supp. 715 (S.D.N.Y.1968); Goodman v. Hentz & Co., 265 F.Supp. 440 (N.D.Ill. 1967); and Stockwell v. Reynolds & Co., 252 F.Supp. 215 (S.D.N.Y.1965). See also Walling v. Beverly Enterprises, 476 F.2d 393 (9th Cir. 1973).

It can hardly be doubted, therefore, that the Securities and Exchange Commission, or a private person having a sufficient interest,¹⁰ could have obtained prophylactic injunctive relief against the defendants in a timely suit.

Thus the question is not whether the complaint alleges a violation of the statute and rule, but rather whether appel lant is barred from suing for damages because it succumbed to the fraud and did not purchase the offered stock.

Like the provisions of the statute and rule relating to coverage,¹¹ the Birnbaum, “purchaser-seller” standing requirement is to be construed to accomplish Congress’ purpose. Herpich v. Wallace, 430 F.2d 792, 806-807 (5th Cir. 1970), and cases there cited. If this were the sole consideration, standing would be allowed to any person whose investment decision was affected by fraud, whether the fraud caused him to buy or prevented him from doing so. In either ease the fraud would frustrate Congress’ purpose, as we have said; and, in either case, allowing the private remedy would serve to vindicate that purpose.¹²

The standing requirement rests in part upon other considerations, however.¹³

. Cases allowing private suits for injunctive relief make it clear that the “purchaser-seller” prerequisite to standing to sue for damages rests largely on the assumption that if plaintiff does not allege that he purchased or sold the stock involved in the fraud it is evident at the outset that his claim must fail “both on proof of loss and the causal connection with the alleged violation of the Rule.” Mutual Shares Corp. v. Genesco, Inc., 384 F.2d 540, 547 (2d Cir. 1967). See also Britt v. Cyril Bath Co., 417 F.2d 433, 435-436 (6th Cir. 1969); cf. Rekant v. Desser, 425 F.2d 872, 881 (5th Cir. 1970); Boone & McGowan, Standing to Sue under SEC Rule 10b-5, 49 Texas L.Rev. 617, 646 (1971); Kellogg, The Inability to Obtain Analytical Precision Where Standing to Sue under Rule 10b-5 Is Involved, 20 Buffalo L. Rev. 93, 114-116 (1970).

This assumption is usually justified. Ordinarily there will be little proof (other than the non-purchaser’s own opinion, after the loss) that the non-purchaser would in fact have purchased but for the fraud, and, if so, how much, when or at what price; also, generally, the potential number of non-purchasers will be without definable limit.

But this is not invariably true.

As we noted in Mount Clemens Industries, Inc. v. Bell, supra, a “common link” among many of the cases allowing non-purchasers or non-sellers to sue for damages under the statute and rule is “the existence of a contractual relationship between the parties.” 464 F.2d at 345. Such contracts often furnish objective evidence of the reality of á plaintiff’s intention to purchase or sell but for the fraud, and thus of causation. They may also fix the price, quantity, and time of sale, thus making it possible to calculate damages. And the existence of such contracts permits a reasonable circumscription of a defendant’s potential liability by identifying from among the limitless number of possible non-purchasers those few that the defendant chose to deal with himself. See Commerce Reporting Co. v. Puretec, Inc., supra, 290 F.Supp. at 719.

Under the allegations of this complaint, the consent decree involved here serves the same function as did the contractual relationship referred to in Mount Clemens. According to the complaint, the consent decree required defendant-appellees to offer particular securities to a specific, identifiable group of non-stockholding retail users of Blue Chip Stamps, including plaintiff-appellant, and plaintiff-appellant had a right to buy those securities at a fixed price and in a fixed amount.¹⁴ The complaint alleges an objective measure of the amount of loss, based on subsequent sales by defendants. As to causation, the complaint alleges that the consent decree offer was intended to be and was a bargain; that units of securities having a market value of $315 were to be offered to plaintiff-appellant for $101 — a difference so great as to provide, prima facie, an objective basis for a factual inference that users properly informed rather than misled would have accepted the offer.¹⁵ It is also alleged that 60 per cent of those non-stockhold-ing users who did purchase the units offered thém had information as to value not made available by defendant-appel-lees in the prospectus.

The facts foreshadowed by plaintiff-appellant’s allegations may not be forthcoming, or the suggested inferences may be shown to be untenable. If such deficiencies become apparent in pretrial proceedings, they will justify judgment short of trial. Walling v. Beverly Enterprises, supra, 476 F.2d at 397. We hold only that dismissal on the face of the complaint was premature.

This holding does not undermine Mount Clemens. The allegations of the present complaint describe a highly unusual situation in which an unyielding insistence upon the existence of a contract to purchase as a prerequisite to relief would subordinate substance to form.

Reversed and remanded for further proceedings.

Footnotes

1

. Section 10(b) of the Act provides:

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange—

(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. (Emphasis added.)

2

. The Rule provides:

It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,

(a) To employ any device, scheme, or artifice to defraud,

(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to malee the statements made,, in the light of the circumstances under which they were made, not misleading, or

(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with the purchase or sale of any security. (Emphasis added.)

3

. This court adopted the Birnbaum rule in Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339 (9th Cir. 1972). See also Lanning v. Serwold, 474 F.2d 716 (9th Cir. 1973); Walling v. Beverly Enterprises, 476 F.2d 393 (9th Cir. 1973).

4

. Some minor .details are drawn from material submitted by plaintiff-appellant to this court. They are appropriately considered as reflecting the nature of the facts that might have been established under the allegations of the complaint. See Herpich v. Wallace, 430 F.2d 792, 809 (5th Cir. 1970); Shell v. Hensley, 430 F.2d 819, 822 n. 8. (5th Cir. 1970).

5

. Defendant-appellees are Thrifty Drug Stores Co., Inc., seven of the eight grocery chains that were defendants in the antitrust suit, the old Blue Chip Stamp Company, the new Blue Chip Stamp Corporation, and the members of the board of directors of the latter.

6

. Ono sucli item was the pendency of claims against the company said to “aggregate approximately $29,000,000.” Defendant-appel-lees allegedly knew the claims “were of insignificant merit”; tiiey were settled for less than $1,000,000.

In addition to reference to the “Items of Special Interest,” the complaint alleges otlier misleading statements, including an estimate that 97%% of the Blue Chip stamps issued by the new company would he redeemed when historically less than 90% were redeemed. This alleged misrepresentation “resulted in an understatement of earnings on stamp sales for the year prior to the offering of Six Million Dollars ($6,000,000) or about eighty per cent (80%).”

7

. It is unclear from the complaint whether the unsold shares originally offered to non-stockholding users were eventually sold, and at what price. The complaint mentioned sales by defendants of “their own” shares, although plaintiff-appellant’s brief indicates that the same shares offered to them “were offered to the general public one year later.” The facts may be resolved in further proceedings.

8

. Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 153, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 12, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971); Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967); Herpich v. Wallace, 430 F.2d 792, 801, 805-806 (5th Cir. 1970); Kahan v. Rosenstiel, 424 F.2d 161, 173 (3d Cir. 1970); SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 851-852, 858 (2d Cir. 1968).

9

. See, e. g., Travis v. Anthes Imperial Ltd., 473 F.2d 515 (8th Cir. 1973); Crane Co. v. Westinghouse Air Brake Co., 419 F.2d 787 (2d Cir. 1969).

10

. Private parties may maintain an action to enjoin anticipated or continuing violations of § 10(b) and Rule 10b-5 though they could not sue for damages. See Kahan v. Rosenstiel, 424 F.2d 161, 173 (3d Cir. 1970); Britt v. Cyril Bath Co., 417 F.2d 433, 436 (6th Cir. 1969); Mutual Shares Corp. v. Genesco, Inc., 384 F.2d 540, 546 (2d Cir. 1967).

11

. Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 12, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971); SEC v. National Sec. Inc., 393 U.S. 453, 466-467, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). See also Kern County Land Co. v. Occidental Petroleum Corp., 411 U.S. 582, 594, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973).

12

. See, e. g., Note, The Purchaser-Seller Requirement of Rule 10b-5, Reevaluated, 44 U.Colo.L.Rev. 151, 154-55 (1972); Boone & McGowan, Standing to Sue under SEC Rule 10b-5, 49 Texas L.Rev. 617, 631, 647 (1971); Ruder, Current Developments in the Federal Law of Corporate Fiduciary Relations-Standing to Sue under Rule 10b-5, 26 Bus.Law 1289, 1296 (1971); Whitaker, The Birnbaum Doctrine: An Assessment, 23 Ala.L.Rev. 543, 571 (1971); Note, Inroads on the Necessity for a Consummated Purchase or Sale under Rule 10b-5, 1969 Duke L.J. 349, 362-63 (1969).

13

. A suggestion that additional considerations may exist that give different meanings to “purchase” and “sale” as these words are used to define coverage in the statute and rule, and as they are employed in connection with the Birnbaum “purchaser-seller” doctrine of standing, appears in SEC v. National Sec., Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). The Court stated that in defining “purchase” and “sale” as these terms are used in the statute and rule to determine coverage, the question to be asked is “whether [the] alleged conduct is the type of fraudulent behavior which was meant to be forbidden by the statute and the rule” (466-467, 89 S.Ct. 572). In a footnote at this point (467 n. 9, 89 S.Ct. 572) the Court added:

“This case presents none of the complications which may arise in determining who, if anyone, may bring private actions under § 10(b) and Rule 10b-5. This is a suit brought by the Commission; the terms ‘purchase’ and ‘sale’ are relevant only to the question of statutory coverage. Therefore there are no ‘standing’ problems lurking in the case.” (Citations omitted.)

14

. As defendant-appellees point out, plaintiff-appellant could not have directly enforced the decree. See Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17, 20 (9th Cir. 1971). Indeed, the district court dismissed a claim based upon the theory that plaintiff-appellant’s damage arose out of a violation of the consent decree, and that ruling was not appealed.

The rule referred to does not bar the claim before us, however. This claim rests upon the theory that plaintiff-appellant was damaged by a violation of the Securities Exchange Act of 1934 and Rule 10b-5 prohibiting fraud in connection with the purchase or sale of securities. The fact that the securities transaction that is the subject matter of the claim was mandated by the consent decree does not immunize defendant-appellees from the statutes and rules regulating securities transactions. Plaintiff-appellant relies upon a breach of a duty imposed by these statutory anti-fraud provisions, not upon a breach of a duty imposed by the consent decree.

15

. An informed decision by j)laintiff-appellant to purchase these shares could not have been thwarted by the intervention of an earlier or higher bidder, as in Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339, 346 n. 11 (9 Cir. 1972).