Nye v. Blyth Eastman Dillon & Co.

588 F.2d 1189, 1978 U.S. App. LEXIS 7345
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 1, 1978
DocketNos. 78-1037, 78-1074 and 78-1085
StatusPublished
Cited by32 cases

This text of 588 F.2d 1189 (Nye v. Blyth Eastman Dillon & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nye v. Blyth Eastman Dillon & Co., 588 F.2d 1189, 1978 U.S. App. LEXIS 7345 (8th Cir. 1978).

Opinion

HEANEY, Circuit Judge.

Blyth Eastman Dillon and Company, Inc., Richard Newham and Harold Covlin appeal from a judgment in the amount of $759,313 entered against them after a non-jury trial. The trial court found that the appellants had violated § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5, 17 C.F.R. § 240.10b-5, because of their conduct involving an investment account maintained by George Nye, Gerald Sterner and Thomas Muleahy with Blyth Eastman. The trial court also found that the appellants had committed common law fraud. The appellants argue that several of the trial court’s factual findings with respect to liability are clearly erroneous and that the trial court’s computation of damages was improper. Nye, Sterner and Muleahy, the appellees and the plaintiffs in the District Court cross-appeal from the decision of the trial court denying them prejudgment interest.1 For the reasons outlined below, we affirm the trial court’s liability findings and, in substantial part, its damage award. With respect to certain elements of its damage award, we reverse and remand for further proceedings.

I. Factual Background.

George Nye, Gerald Sterner and Thomas Muleahy were officers, directors and members of the executive committee of Sterner Lighting Company. On September 10, 1970, they established a joint venture for the purpose of acquiring and trading securities. The joint venture was formed primarily to produce funds for the purchase of Joe Sterner’s interest in Sterner Industries, a holding company for a substantial block of Sterner Lighting Company.2 Joe Sterner, an older brother of Gerald Sterner, had expressed a desire to leave the business. The purchase price was estimated to be between $350,000 and $500,000. To accomplish their objective, the appellees opened between eight and ten new accounts for the joint venture with several brokerage firms, including Blyth Eastman Dillon and Company.

The events surrounding the opening of the Blyth Eastman account occurred prior to October 1, 1970. Richard Newham, a registered representative or broker for Blyth Eastman, contacted Sterner at his office for the purpose of soliciting his business. Shortly thereafter, Sterner opened an account for the joint venture with Blyth [1193]*1193Eastman.3 The account was established as a non-discretionary one, that is, Newham could not purchase or sell securities held in the account without the consent of one of the joint venturers. The appellees did not, at any time, authorize Newham or any other person to make discretionary trades in the account.

In order to induce the appellees to open the account, Newham misrepresented his credentials as a broker. Newham told the appellees that he was one of Blyth Eastman’s top producers; that he was experienced in the brokerage business; that he had worked his way up through the firm for several years; that he handled only a select number of major accounts; and that he utilized additional research sources not available to Blyth Eastman at a personal cost of $1,000 to $1,200 a month. Newham also represented that his status in the firm allowed him to obtain a greater share of new securities issues than was available to other brokers.

In truth, Newham was a novice broker. He had been licensed on July 15, 1970. He had failed the New York Stock Exchange examination the first time he took it in March, 1970. Newham had no large accounts and had no special training or research sources. His status with the firm entitled him to less than an average share of new issues.

Newham’s false representations were supported by the management of Blyth Eastman. James Clearly, Blyth Eastman’s managing partner for the Sales and Branch Office Division, in a letter dated October 9, 1970, acknowledging the opening of the account, assured the appellees that “a thoroughly experienced account executive is representing your interests.” Harold Covlin, the branch manager at Blyth Eastman’s Minneapolis office, confirmed these misrepresentations when the appellees subsequently complained about Newham’s conduct and threatened to change brokers or brokerage firms. Covlin maintained that Newham was his best broker and that nobody was as conscientious in his analysis of the market. Covlin was Newham’s supervisor in the Minneapolis office.

There was substantial activity in the account from October, 1970, until July, 1972, when Newham and Covlin left Blyth Eastman. At its peak, the appellees’ investment in the account approximated $400,000 to $450,000, all of it representing bank borrowings. This investment supported a total investment of approximately $750,000 to $800,000 because the account was established on a margin basis. We now examine the relevant transactions in which the trial court found liability.

A. Walter Kidde, Universal Foods and Nicolet Instrument.

In this group of transactions the trial court found that Newham had made unauthorized discretionary purchases which resulted in losses to the appellees when they were subsequently sold.

On October 20, 1970, Newham purchased 1,000 shares of Walter Kidde for $26,963. The appellees had previously told both Newham and Covlin that they were not interested in the stock. They never authorized Newham to make the purchase. Upon learning of the purchase, they immediately instructed Newham to sell. Newham delayed doing so until October 28, 1970, when he sold the shares for $19,557. This represented a loss of $7,406. The appellees complained to Covlin about the loss. Covlin stated that it would not happen again. He did not, however, offer to make up the loss.

On March 30, 1971, Newham made an unauthorized purchase of 3,700 shares of Universal Foods for $129,500. The appellees had some Universal Foods stock in their account. They did not, however, authorize the purchase of the 3,700 shares. The appellees ordered Newham to cancel the purchase. Newham did so with respect to 2,000 shares, representing $70,000 of the purchase price. He sold the remaining shares on April 2, 1971, for $42,700. Since [1194]*1194the cost of the 1,700 remaining shares was $59,500, the appellees incurred a loss of $6,800.

Newham made another unauthorized purchase of stock on July 7, 1971. He purchased 2,500 shares of Nicolet Instrument for $31,512. Newham had previously tried to talk the appellees into buying the stock, but they had refused. After learning of the purchase, the appellees instructed New-ham to sell. The shares were sold on August 6,1971, for $28,150 representing a loss of $3,362. The total loss for the three unauthorized purchases was $17,568, which was the amount of damages awarded by the trial court.4

By August 1, 1971, Covlin had reassured the appellees that their account would be handled properly. Although the securities held in the appellees’ account had suffered a decline in market value, resulting in an unrealized loss of $90,000, the appellees were satisfied with their holdings and expected the market value to recover. This was not an unrealistic expectation since the appellees would have made a $60,000 profit if they had held the securities until February, 1972, only six months later.

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Bluebook (online)
588 F.2d 1189, 1978 U.S. App. LEXIS 7345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nye-v-blyth-eastman-dillon-co-ca8-1978.