Rosen v. Cascade Intern., Inc.

• Decision Date: 11 April 1994
• Docket Number: No. 92-4999,92-4999
• Citation: 21 F.3d 1520
• Parties: , Fed. Sec. L. Rep. P 98,168 Howard ROSEN, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. CASCADE INTERNATIONAL, INC., Victor G. Incendy, John T. Sirmans, Jr., Bernard N. Levy, Defendants, Dr. Lawrence Moses, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1520

21 F.3d 1520

62 USLW 2653, Fed. Sec. L. Rep. P 98,168

Howard ROSEN, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. CASCADE INTERNATIONAL, INC., Victor G. Incendy, John T Sirmans, Jr., Bernard N. Levy, Defendants Dr. Lawrence Moses, Defendant-Appellant.

No. 92-4999.

United States Court of Appeals, Eleventh Circuit.

April 11, 1994.

Jeanne Baker, Jane W. Moscowitz, Miami, FL, Barrack, Rodos & Bacine, Daniel E. Bacine, Sheldon L. Albert, Philadelphia, PA, for defendant-appellant.

Steven J. Toll, Daniel Sommers, Cohen, Milstein, Hausfeld & Toll, Washington, DC, Sherrie R. Savett, Berger & Montague, P.C., Philadelphia, PA, for plaintiff-appellee.

Appeal from the United States District Court Southern District of Florida.

Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and RONEY, Senior Circuit Judge.

TJOFLAT, Chief Judge:

This action for money damages, which arises out of a series of allegedly fraudulent securities transactions, is presently pending before the district court. In order to ensure that the plaintiffs would be able to satisfy any money judgment they might ultimately obtain in this litigation, the district court, on the plaintiffs' application for preliminary injunctive relief, froze the assets of one of the defendants. On appeal, that defendant challenges the authority of the district court to enter such an injunction. Because we conclude that the district court had no lawful authority to freeze the defendant's assets pending the outcome of this action, we reverse.

I.

The plaintiffs in the underlying litigation, and the appellees here, are shareholders of Cascade International, Inc. ("Cascade"), who purchased stock in the company between August 1989 and November 1991. Cascade, a Delaware corporation with its principal place of business in Florida, is a manufacturer and retail seller of various cosmetic and skin care products; the company also operates women's clothing stores from which it sells its cosmetics and imported designer fragrances. Throughout the relevant time period, Victor G. Incendy was the President, Chief Executive Officer, and Chairman of the Board of Cascade; he also owned approximately fifty-one percent of the outstanding voting shares of the company. Lawrence D. Moses, the appellant here, is a Pennsylvania dentist who served as an outside member of the Cascade Board of Directors during the relevant time period. This case involves a series of allegedly fraudulent public statements concerning Cascade's growth and profitability, as well as illegal trading in Cascade stock by corporate officials. ¹

A.

Throughout 1990 and 1991, Cascade announced steadily increasing earnings, as well as growth in other vital business statistics, in company reports to shareholders, press releases, and filings with federal and state securities-regulating agencies. Moses signed many of Cascade's public filings during the time period here in question, including its annual reports on Securities Exchange Commission Form 10-K for fiscal years 1990 and 1991. The appellees allege that these favorable statements and projections included, among other things, misrepresentations concerning the revenues generated by the company's cosmetics operations and the number of stores the company actually operated. They also contend that Cascade failed to correct earlier reports that it knew would be misleading if left in circulation without amendment to reflect more current information. The appellees conclude that Cascade and its officers therefore concealed adverse facts concerning the company's assets, revenues, and business prospects.

Based upon the information contained in these releases, stock analysts quoted in the Wall Street Journal and other financial publications opined during the summer of 1991 that Cascade stock was one of the "hottest bargains around" because the stock was undervalued in light of the company's optimistic growth prospects; a significant and rapid rise in the price of Cascade's stock resulted. ² Cascade, through its misrepresentations, thereby maintained an artificially high market price for Cascade stock and induced the appellees to purchase shares at inflated prices.

Moreover, during this same two year period, Incendy, Moses, and certain other individuals affiliated with Cascade allegedly participated in an elaborate scheme to place almost seven million shares of unauthorized Cascade stock into the market. By not disclosing the existence of these shares in the company's annual reports, the appellees allege, the defendants secretly diluted the holdings of Cascade investors and misled potential buyers of Cascade stock about the value of the outstanding shares. In addition, the defendants apparently privately retained the proceeds from the issuance of this unauthorized stock.

In September of 1991, rumors began to circulate in the investment community that Cascade was misleading traders concerning its financial condition and the number of outstanding shares. On October 2, 1991, the Overpriced Stock Service Newsletter questioned Cascade's accounting methods and the accuracy of the company's public disclosures. The reaction in the market was immediate and substantial; Cascade's stock price fell from $7 1/4 on October 1 to $5 7/8 on October 2 and continued to decline thereafter.

Public controversy about Cascade continued, and further information about Cascade's financial misrepresentations came to light. On November 20, 1991, Cascade announced that it was unable to locate Incendy (its CEO) and that its public financial statements for the past two years "may not [have been] accurate." The NASDAQ market system halted trading in Cascade stock at that time. Cascade then filed for bankruptcy protection on December 16, 1991. Also in December, Aaron Karp, Cascade's new interim board chairman, wrote to all Cascade shareholders and revealed the nature of the fraud evidently committed by the company and Incendy. ³ He explained:

The audited and unaudited financial statements which were issued by the Company for at least the past two fiscal years did not correctly reflect revenues and earnings of the Company or the correct number of shares of common stock outstanding during such periods. It would be pointless to try in this brief letter to explain in detail the manner of these failings. Suffice it so say, they are both numerous and material.

It appears from our investigations that the issuance of large numbers of shares of common stock of the Company and subsequent transfers of those shares were not authorized by the Board of Directors and violated numerous provisions of the federal securities laws.... Their effect was to inflate what Mr. Incendy reported and the auditor certified as revenues.

In addition, Karp informed the stockholders, "[t]here are fewer retail outlets and cosmetic counters operated by the Company ... than the number portrayed by Mr. Incendy. The cosmetics did not generate the income he depicted." ⁴ The shareholders' reaction to this series of disclosures by Cascade was immediate: they filed numerous suits to recover damages suffered as a result of the misrepresentations.

B.

The first suit, a class action based upon the alleged misrepresentations, was filed in the United States District Court for the Southern District of Florida on October 18, 1991. The complaint named Cascade and Incendy as defendants, along with John T. Sirmans (Cascade's Vice President and board Secretary) and Bernard H. Levy (Cascade's auditor). During October and November of 1991, sixteen additional class actions were filed against various individuals affiliated with Cascade; six of these named Moses as a defendant. The district court consolidated all of the class actions relating to Cascade on April 22, 1992. ⁵

Because of his alleged role in misrepresenting the financial condition of Cascade to investors, the appellees raise claims against Moses for securities fraud under both federal statutes and state common law. In particular, the appellees allege causes of action under section 10(b) of the Securities Exchange Act of 1934 ("1934 Act"), 15 U.S.C. Sec. 78j(b) (1988), and Rule 10b-5 promulgated thereunder, 17 C.F.R. Sec. 240.10b-5 (1992), which, taken together, create an implied private right of action for misrepresentations of material facts in the purchase or sale of securities. ⁶ See Herman & MacLean v. Huddleston, 459 U.S. 375, 380 & n. 10, 103 S.Ct. 683, 686 & n. 10, 74 L.Ed.2d 548 (1983). They also contend that Moses is liable under section 20(a) of the 1934 Act, 15 U.S.C. Sec. 78t(a) (1988), which provides for joint and several liability for "controlling persons" of an institution involved in a violation of the securities laws. ⁷ Finally, the shareholders assert causes of action for negligent misrepresentation and fraud under Florida state common law. ⁸ Each of the six complaints against Moses seeks: (1) the certification of a class of shareholders under Rule 23 of the Federal Rules of Civil Procedure; (2) damages (with interest) suffered as a result of the alleged violations of law; (3) costs and attorneys' fees; and (4) "such other and further relief" as the court deems "just and proper" (phrased variously in the several complaints). None of these complaints requests a permanent injunction as an alternative remedy for any of the stated causes of action.

On May 8, 1992, the appellees filed a motion for a temporary restraining order freezing Moses' assets. Following an ex parte hearing on the application, the district court issued the requested order on May 13. It provided:

[P]ending hearing on Plaintiffs' motion for a preliminary injunction [to be held on May 21, 1992], defendant Lawrence Moses [is] restrained and enjoined from, directly or indirectly, assigning, bartering, conveying, destroying, encumbering, hypothecating, liquidating, mortgaging, pleading, selling, transferring, or in any other manner disposing of any asset, or any interest...