Panzirer v. Wolf

663 F.2d 365, 32 Fed. R. Serv. 2d 1277, 1981 U.S. App. LEXIS 16523
Court of Appeals for the Second Circuit·Decided October 28, 1981·No. No. 10, Docket 80-7827·Published·Cited by 60 cases

Opinion

LUMBARD, Circuit Judge:

Allied Artists Industries, Inc., issued an allegedly false annual report in August 1978. Zelda Panzirer purchased Allied stock thereafter upon reading an article in The Wall Street Journal. She never saw the annual report. When Allied started bankruptcy proceedings in 1979, she sued Allied officers and Price Waterhouse & Co., Allied’s accountants, under § 10(b) and Rule 10b-5 of the Exchange Act, 15 U.S.C. § 78j(b), 17 C.F.R. § 240.10b-5. She also sought to represent the class of investors purchasing Allied stock after release of the annual report. The district court, per Motley, J., dismissed Zelda Panzirer’s suit on summary judgment and denied class certification on the ground that she had failed to show that reliance on the annual report caused her loss. We reverse in part and affirm in part. Plaintiff relied on an article in The Wall Street Journal which she claims would have presented the company in a less favorable light had the annual report been accurate. She has stated a causal connection between her loss and the annual report which, on this record, cannot be dismissed on summary judgment. We affirm, however, the denial of class certification as being within the discretion of the district court.

On this appeal from summary judgment, the allegations of the complaint, as supplemented by plaintiff’s deposition and numerous affidavits submitted by all parties, describe the story of Zelda Panzirer’s losing investment in Allied common stock. She read about Allied in The Wall Street Journal while driving up to Vermont on September 29, 1978. The “Heard on the Street” column in that day’s Journal covered the video cassette market, and devoted two paragraphs to Allied:

Several analysts contend that Allied Artists is in a good position to take advantage of the growing demand for video tapes, having pioneered the development of pre-recorded cassettes.
Andrew G. Racz of Philips, Appel & Walden, Inc. says Allied Artists, besides having a head start in video tapes and cassettes, is negotiating with TV networks, other film producers and makers of educational films to put their films on video cassettes. “The educational and informational area constitutes a tremendous market for video cassettes,” says Mr. Racz, adding: “We continue to be bullish on Allied Artists. It’s an attractive turn-around situation.”

Zelda Panzirer had been a substitute school teacher. The item on the educational use of video cassettes caught her eye. She checked the price of Allied common stock, which was listed on the American Stock Exchange and had traded at between $5 and $6V8 on September 28. Her husband Leo Panzirer stopped the car. Zelda Panzirer called her broker, Michael Blum, at E. F. Hutton’s office in Hackensack, N.J. She asked if there was any negative news about Allied. Blum said that neither he nor E. F. Hutton followed the company, but after several minutes delay and a glance at Standard & Poor’s tear sheet on Allied, said there was no negative news. Zelda Panzirer ordered 200 shares of Allied common stock. Later on her trip, after discussing the purchase with her husband, she phoned Blum a second time to raise her order to 500 shares. E. F. Hutton purchased the shares for Zelda Panzirer at a September 29 market price of $7 per share.

The Standard & Poor’s tear sheet abstracted information from Allied’s annual report for the fiscal year ending March 31, 1978. The report was issued on August 18, 1978, and allegedly contained numerous misrepresentations and omissions. The principal misrepresentation was the report of profits for that year based in part on receipts from Allied’s film, “The Betsy.” In fact, Allied had to split those receipts with the film’s overseas distributor, United Artists, and thus lost money in 1978. The principal omission was the annual report’s failure to include a qualification by Allied’s accountants stating their doubts as to Allied’s ability to function as a going concern.1 [367] Allied common stock closed at $27/s per share the day the annual report was issued. It peaked at $7% per share on October 2, 1978,2 and declined thereafter. Allied filed a Chapter XI petition in bankruptcy on April 4, 1979.

Zelda Panzirer never saw the annual report. In her complaint, she alleges that she relied on the “integrity of the market.” She asserts that the annual report affected the market, and therefore she had relied on the report through her reliance on the integrity of the market. Judge Motley, however, found that plaintiff “primarily” relied on The Wall Street Journal column about Allied’s prospects in the video cassette market and that plaintiff placed only secondary reliance on the integrity of the market. She held that secondary reliance was insufficient to support a 10b-5 claim. We cannot agree. We find no support in the law for the district court’s distinction between primary and secondary reliance.

The function of requiring the plaintiff to show reliance in a 10b-5 action is to permit only those injured by fraud to sue. If plaintiff can link her injury to defendant’s fraud by showing the fraud was a “substantial” or “significant contributing cause,” plaintiff has shown sufficient reliance to support her 10b-5 claim. Wilson v. Comtech Telecommunications Corp., 648 F.2d 88, 92 (2d Cir. 1981). Plaintiff has on this record stated a sufficient connection between her loss and the allegedly fraudulent annual report to withstand a motion for summary judgment.

As we read the record, Zelda Panzirer’s purchase of the Allied stock was caused by her perusal of The Wall Street Journal column. Her knowledge of the price of the stock and her conversation with her broker were merely neutral factors as they presented no impediment to her acting on the favorable notice in The Wall Street Journal.3 Consequently, the plaintiff argues that if Allied’s report had been accurate, the stock analysts interviewed by the Journal would not have mentioned the company favorably, the Journal would not have devoted two paragraphs to Allied’s prospects in the video cassette market, and plaintiff would not have been led by the article to buy her stock. Defendants have introduced no evidence to contradict this chain of causation. Though, at trial, the validity of the chain of causation will be tested, on summary judgment questions about this chain of causation must be resolved in favor of plaintiff, who in the case of a material fraud on the market enjoys a presumption of reliance. Where the plaintiff acts upon information from those working in or reporting on the securities markets, and where that information is circulated after a material misrepresentation or omission, plaintiff has stated a sufficient claim of reliance on the misrepresentation or omission.

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

Panzirer v. Wolf, 663 F.2d 365, 32 Fed. R. Serv. 2d 1277, 1981 U.S. App. LEXIS 16523 (2d Cir. 1981).

663 F.2d 365 (Panzirer v. Wolf) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Gomez v. PNC Bank, National Ass'n
306 F.R.D. 156 (N.D. Illinois, 2014)
Gooch v. Life Investors Insurance
264 F.R.D. 340 (M.D. Tennessee, 2009)
In re Priceline.com Inc. Securities Litigation
236 F.R.D. 89 (D. Connecticut, 2006)
Richards v. FleetBoston Financial Corp.
35 A.L.R. Fed. 2d 701 (D. Connecticut, 2006)
Weikel v. Tower Semiconductor Ltd.
183 F.R.D. 377 (D. New Jersey, 1998)
Kalodner v. Michaels Stores, Inc.
172 F.R.D. 200 (N.D. Texas, 1997)
Antonson v. Robertson
141 F.R.D. 501 (D. Kansas, 1991)
South Carolina National Bank v. Stone
139 F.R.D. 325 (D. South Carolina, 1991)
In re Amerifirst Securities Litigation
139 F.R.D. 423 (S.D. Florida, 1991)
Fry v. UAL Corp.
136 F.R.D. 626 (N.D. Illinois, 1991)
Hoffman Electric, Inc. v. Emerson Electric Co.
754 F. Supp. 1070 (W.D. Pennsylvania, 1991)
Deutschman v. Beneficial Corp.
132 F.R.D. 359 (D. Delaware, 1990)
In Re Laser Arms Corp. Securities Litigation
794 F. Supp. 475 (S.D. New York, 1989)
In Re Gulf Oil/Cities Service Tender Offer Lit.
725 F. Supp. 712 (S.D. New York, 1989)
Seagoing Uniform Corp. v. Texaco, Inc.
705 F. Supp. 918 (S.D. New York, 1989)
Jackson v. First Federal Sav. of Arkansas, FA
709 F. Supp. 863 (E.D. Arkansas, 1988)
Garfinkel v. Memory Metals, Inc.
695 F. Supp. 1397 (D. Connecticut, 1988)