421 F.2d 137 (9th Cir. 1969), 23899, Northwest Paper Corp. v. Thompson

Docket Nº:23899.
Citation:421 F.2d 137
Party Name:NORTHWEST PAPER CORPORATION, a Washington corporation, Plaintiff-Appellant, v. Darrow THOMPSON and Stanley Thompson, individuals, Defendants-Appellees.
Case Date:December 22, 1969
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 137

421 F.2d 137 (9th Cir. 1969)

NORTHWEST PAPER CORPORATION, a Washington corporation, Plaintiff-Appellant,

v.

Darrow THOMPSON and Stanley Thompson, individuals, Defendants-Appellees.

No. 23899.

United States Court of Appeals, Ninth Circuit.

December 22, 1969

Page 138

Robert A. Jensen, Walter Cheifetz, John P. Frank, of Lewis, Roca, Beauchamp & Linton, Phoenix, Ariz., Carlton J. Peterson, of Stephens, Jones, LaFever & Smith, Los Angeles, Cal., for appellant.

Roger W. Perry, Loren W. Counce, Jr., of Snell & Wilmer, Phoenix, Ariz., for appellee.

Before MERRILL and CARTER, Circuit Judges, and JAMESON, District judge. 1

PER CURIAM:

Northwest Paper Corporation brought suit alleging that it had suffered damages when appellees induced it to sell shares of the stock of Thompson Industries, Inc. to appellees by means and under circumstances that violate the Securities Exchange Act of 1934, 15 U.S.C. 78j, and Rule 10b-5 promulgated under that Act, 17 C.F.R.240 (Cum.Supp.). Appellant claims that appellees made certain critical statements upon which appellant's officers relied in reaching a decision to sell the stock; that such statements were made without revealing additional facts which were necessary in order to place the statements in proper context.

The District Court rendered summary judgment for appellees. The appeal presents the question whether this constituted error for the reason that disputes of fact remained for trial.

In granting judgment the District Court ruled that all items of information specified by appellant as withheld from it were, as matter of law, immaterial and would not have been relied on by reasonable men. The recognized test of materiality of a fact in this respect is whether 'its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice of action in the transaction in question.' Restatement of the Law, Torts, § 538(2)(a). See SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 848-849 (2d Cir. 1968); Myzel v. Fields, 386 F.2d 718, 735 (8th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1143 (1968); List v. Fashion Park, Inc., 340 F.2d 457, 463, 22 A.L.R.3d 782 (2d Cir.), cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965).

To take such an issue from the jury in the ordinary case would unquestionably invite reversal. See Rogen v. Ilikon...

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