Wilson v. Great American Industries, Inc.

979 F.2d 924
CourtCourt of Appeals for the Second Circuit
DecidedNovember 17, 1992
DocketNos. 787, 997, Dockets 91-7682, 91-7708
StatusPublished
Cited by16 cases

This text of 979 F.2d 924 (Wilson v. Great American Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Great American Industries, Inc., 979 F.2d 924 (2d Cir. 1992).

Opinions

CARDAMONE, Circuit Judge:

Defendants appeal and plaintiffs cross appeal from two decisions and orders of the United States District Court for the Northern District of New York (McCum, C.J.) that awarded damages to plaintiffs because of misrepresentations contained in a joint proxy/prospectus issued in connection with a merger of defendant Chenango Industries, Incorporated (Chenango) into defendant Great American Industries, Incorporated (Great American). Defendants assert that the intervening Supreme Court decision in Virginia Bankshares, Inc. v. Sandberg, — U.S. -, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991), compels dismissal of plaintiffs’ causes of action on the grounds that. as minority shareholders, without power to influence the proposed merger, they suffered no compensable damages under § 14(a) of the Security Exchange Act, notwithstanding that their votes were solicited by proxies containing material misrepresentations. Defendants and plaintiffs also claim the district court incorrectly calculated damages.

BACKGROUND

The facts in this almost 12-year-old case have been set forth in substantial detail twice before, see Wilson v. Great American Industries, Inc., 661 F.Supp. 1555 (N.D.N.Y.1987) (Wilson I), rev’d, 855 F.2d 987 (2d Cir.1988) (Wilson II). Familiarity with those decisions is assumed, as well as with the decisions of the district court from which this appeal and cross-appeal are taken, reported at 746 F.Supp. 251 (N.D.N.Y.1990) (Wilson III) and at 763 F.Supp. 688 (N.D.N.Y.1991) (Wilson IV).

Plaintiffs, former minority shareholders of Chenango, are represented as a class by Alexander Wilson. Defendants are Great American, Chenango, and various officers, directors, and attorneys connected with those two corporations. Plaintiffs brought suit in the Northern District of New York on October 17, 1980 alleging defendants violated §§ 10(b), 14(a), and 18(a) of the Securities and Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78n(a), and 78r(a), (Act), as implemented by Rules 10b-5 and 14a-9, 17 C.F.R. §§ 240.10b-5 and 14a-9 (1992), and § 12(2) of the Securities Act of 1933, 15 U.S.C. § 771(2). They allege defendants are guilty of omissions or misrepresentations of material fact in the joint proxy/prospectus distributed to all shareholders between September 27 and October 18, 1979 pursuant to the proposed merger of Chenango into Great American. Great American manufactures rubber goods, corrugated boxes, and recreational products that are marketed through its subsidiaries. Chenango supplies services and equipment to electronic equipment manufacturers. It also owns Lancaster Towers, a home for the elderly, from which it derives substantial tax benefits.

The thrust of plaintiffs’ complaint is that the material misstatements induced them to exchange their shares of Chenango common stock for new preferred stock in Great American. Defendants at the time of the merger owned 73 percent of Chenango’s stock, well over the two thirds necessary under New York law to approve a corporate merger. New York law only required that defendants hold a shareholders’ meeting prior to which Chenango was required to give each shareholder notice of the meeting accompanied by a “copy of the plan of merger.” N.Y.Bus.Corp. Law § 903(a)(1) (McKinney 1986). Because Chenango stock was registered under § 12(g) of the Act, 15 U.S.C. § 78/(g), defendants were also required to provide shareholders with an “Information Statement” pursuant to § 14(c) of the Act, 15 U.S.C. § 78n(c). Nonetheless, defendants mailed out joint proxy and registration statements seeking Chenango minority shareholders’ approval of the merger.

The misrepresentations or omissions contained in the proxy created an unfair exchange ratio, plaintiffs assert, by overvaluing Great American’s stock and undervaluing Chenango’s stock. The principal terms of the mergers were as follows: the aggregate book value of Chenango’s common [927]*927stock purportedly was $1.2 million or about $4 per share. For their shares of Chenan-go common stock, plaintiffs received new Series B preferred stock in Great American with an asserted aggregate par value of $1.2 million, bearing a 6 percent dividend and convertible into Great American common stock at the rate of 6 shares of Series B to 5 shares of common. Because Great American preferred stock was valued at $10 per share, the Chenango stock was exchanged at a rate of two and a half shares for one share of Great American’s preferred stock. Shareholders of Chenan-go approved the merger on October 18, 1979. On October 31, 1979 Chenango became a wholly-owned subsidiary of Great American.

In Wilson I the district court granted judgment in favor of defendants because it found plaintiffs had failed to establish a violation of federal securities law. It ruled that out of 13 alleged misrepresentations or omissions, plaintiffs had proved only one was material, and this single omission was not shown to have been accompanied by the requisite scienter. In dismissing each of the four securities law theories alleged, the district court noted defendants failed to contest the issue of causation and therefore concluded that element had been met. See Wilson I, 661 F.Supp. at 1562. Plaintiffs’ causes of action under §§ 10(b), 14(a), 18(a) and 12(2) were dismissed.

In reversing Wilson II, a panel of this Court found the proxy statement contained five material omissions or misrepresentations and therefore violated § 14(a) of the Securities and Exchange Act, 15 U.S.C. § 78n(a), and Rule 14a-9. See 855 F.2d at 991-95. Without discussing the element of causation, we ruled that all defendants— based on their knowledge of the true facts and the omission or misrepresentation of these facts in the proxy — were culpable under § 14(a) of the Act and hence liable to plaintiffs. Id. at 995. Plaintiffs’ other causes of action brought under 15 U.S.C. §§ 77/, 78j(b), and 78r(a) that had been dismissed by the trial court were not discussed. Holding that plaintiffs should receive a second opportunity to prove their damages, we remanded with specific instructions as to how to measure those damages. Because the defendants had acted fraudulently, we stated “plaintiffs are entitled to recover damages equivalent to the benefit of the bargain they would' have obtained had full disclosure been made. The determination of . damages should include a valuation of Chenango’s , future earning power, viewed prospectively from the date of the merger.” Id. at 996. These damages, we continued, should be the amount of the defendants’ improperly obtained profit, “even of windfalls,” and could include unrealized appreciations in the value of the stock. Id.

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Wilson v. Great American Industries
979 F.2d 924 (Second Circuit, 1992)

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Bluebook (online)
979 F.2d 924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-great-american-industries-inc-ca2-1992.