Morris v. Newman

948 F.2d 507, 1991 WL 163656
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 27, 1991
DocketNo. 90-15156
StatusPublished
Cited by2 cases

This text of 948 F.2d 507 (Morris v. Newman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Newman, 948 F.2d 507, 1991 WL 163656 (9th Cir. 1991).

Opinion

DAVID R. THOMPSON, Circuit Judge:

Purchasers of the stock of Convergent Technologies, Inc. (“Convergent”) brought this class action against Convergent and certain of Convergent’s officers and directors, the underwriters of public offerings of Convergent stock, and Unysis Corporation (formerly known and hereafter re[509]*509ferred to as “Burroughs”) (collectively “defendants”). The plaintiffs represent a class of all those who bought Convergent stock between a March 17, 1983 public stock offering, and February 17, 1984, the day after Convergent disclosed negative information to a group of stock analysts (the “class period”).

The plaintiffs asserted causes of action under section 11 of the Securities Act of 1933, section 10(b) of the Securities Exchange Act of 1934, and California law. The complaint alleged the defendants misrepresented the growth in demand for Convergent’s existing line of computer workstation products and concealed allegedly severe production and profitability problems with two product lines under development during the class period. It also charged that the underwriter defendants’ research reports contained misrepresentations.

In November 1986, the district court dismissed the plaintiffs’ section 11 claims on the ground that the plaintiffs instituted their suit more than one year after they were on inquiry notice that a potential section 11 claim existed. Two years later, the district court dismissed the rest of the claims. The court determined that the plaintiffs had not produced sufficient evidence to support their contention that the defendants’ public statements were misleading, or that the defendants had failed to disclose any material facts. The district court also granted summary judgment in favor of the underwriter defendants, concluding that their research reports had “a sufficient factual and/or historical basis.” See In re Convergent Technologies Sec. Litig., 721 F.Supp. 1133 (N.D.Cal.1988).

The plaintiffs appeal from the district court’s grant of summary judgment on all claims. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS

The plaintiffs construct their case on the foundation of alleged misleading statements and omissions relating to three discrete Convergent product lines.

A. The AWS/IWS Product Line

In early 1981, Convergent began shipping its first product, a sixteen-bit microprocessor-based workstation, called the IWS. Convergent later developed a lower-cost version called the AWS. In 1982, the AWS/IWS workstation was Convergent’s only product. Convergent sold the AWS/ IWS product line to Original Equipment Manufacturers (“OEMs”) such as Burroughs and NCR, who then integrated the products into their own product lines under their own labels. Convergent sold its products pursuant to signed purchase agreements.

In September 1981, Convergent and Burroughs entered into a master Corporate Pricing Agreement (the “Agreement”). The Agreement required Burroughs to buy 10,000 workstations by the end of 1983. In July 1982, Burroughs and Convergent began negotiations regarding future Burroughs’ purchases. In a letter dated July 29, 1982, Convergent agreed to reduce prices on its AWS/IWS workstations by 30% in return for Burroughs’ “firm commitment” to buy 30,000 units from Convergent in 1983. Convergent never disclosed this 30,000 unit figure to the public.

In December 1982, Convergent and Burroughs began renegotiating the quantity commitment and exploring the possibility of a further price cut. By March 17, 1983, when the class period commenced, Burroughs had bought more than the 10,000 workstations it had committed to buy in the Agreement. Just after that date, Burroughs informed Convergent that it would buy 17,500 AWS workstations, plus all the NGENs (a new product line we discuss in part B) Convergent could make. The parties incorporated these quantities into an amendment to the Agreement. They signed the Amendment in September of 1983.

Sometime toward the end of July 1983, Convergent management concluded that AWS/IWS sales growth during the remainder of the year would slow. Convergent disclosed this projection in a press release on August 5, 1983:

[510]*510[N]et sales for the third quarter of 1983 will be approximately equal to [Convergent’s] net sales for the second quarter because of customer anticipation of [Convergent’s] next generation of products, which are expected to be available for volume shipments in the first half of calendar 1984. Fourth quarter revenues cannot be predicted with certainty, but could be below third quarter revenues. Because of price reduction on existing products and start-up costs associated with three new product lines, the Company anticipates that until volume shipments of its new products begin there will be a decrease in gross profit margin, and may be a substantial decrease in net income.

As a result of this press release, the stock price dropped $6.63 a share, nearly 20%.

B. The NGEN Product Line

As early as 1982 Convergent began finalizing development plans on the successor to the AWS/IWS workstation. Convergent expected the NGEN workstation (short for “Next GENeration”) to cost approximately half as much as the AWS/IWS with significant improvements in performance. Convergent established target list prices for the NGEN product line in the summer of 1982. It began to negotiate contracts for the sale of NGEN to its OEM customers, including Burroughs, by late 1982.

In early 1983, Convergent management became aware of serious pricing and cost problems with the NGEN line. In February, the NGEN project director noted in an internal memorandum that the cost/pricing structure for NGEN would leave the company “with no profit!” The project director concluded that he did not yet “know how to achieve” the necessary reductions. He anguished: “I need more ideas.” In late March, he circulated another internal memo, using a best-case analysis that revealed negative gross margins on sales to Burroughs through 1983.1

In its March 17, 1983 Prospectus, Convergent discussed the introduction of the NGEN line and Convergent’s cost objectives:

The Company plans to introduce an advanced family of 16-bit workstations which will be software compatible with its existing product line, but which are intended to provide significant performance and price advantages.... Volume shipments of these new products are planned for 1984; consequently, they are not expected to have a significant impact on 1983 revenues....
In addition to its current products, this division is developing an advanced family of 16-bit multifunction workstations which the Company anticipates will be both significantly more powerful and less expensive than existing workstation products. These workstations will be software compatible with the AWS and IWS products. The Company currently expects to introduce and to begin volume shipments of these products in the first half of 1984. While the Company believes that the technical risks in the development of these products are well controlled, the product cost objectives are very aggressive, and there is no assurance that they can be achieved.

As it turned out, for most configurations of the NGEN workstation, Convergent failed to achieve positive gross margins until 1984.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kas v. Caterpillar, Inc.
815 F. Supp. 1158 (C.D. Illinois, 1992)
In Re Convergent Technologies Securities Litigation
948 F.2d 507 (Ninth Circuit, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
948 F.2d 507, 1991 WL 163656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-newman-ca9-1991.