438 F.2d 1167 (2nd Cir. 1970), 551, Chasins v. Smith, Barney & Co.

Docket Nº:551, 657, 34326, 34456.
Citation:438 F.2d 1167
Party Name:Abram CHASINS, Appellee, v. SMITH, BARNEY & CO., Inc., Appellant.
Case Date:July 07, 1970
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1167

438 F.2d 1167 (2nd Cir. 1970)

Abram CHASINS, Appellee,

v.

SMITH, BARNEY & CO., Inc., Appellant.

Nos. 551, 657, 34326, 34456.

United States Court of Appeals, Second Circuit.

July 7, 1970

Argued March 13, 1970.

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Marvin Schwartz, New York City (Sullivan & Cromwell, New York City, Michael M. Maney, New York City, of counsel), for appellant.

Edward M. Rosenfeld, New York City (Graubard, Moskowitz, McGoldrick, Dannett & Horowitz, New York City, Philip Kazon, Jack Weinberg, New York City, of counsel), for appellee.

Leonard M. Leiman, New York City (Reavis & McGrath, New York City, Richard O. Scribner, New York City, of counsel), on the brief for Ass'n of Stock Exchange Firms, Amicus curiae.

Robert A. Bicks, Paul E. Arneson, New York City (Breed, Abbott & Morgan, New York City, Lloyd J. Derrickson, Vice President and Gen. Counsel, and Frank J. Wilson, Secretary and Associate Gen. Counsel, National Ass'n of Securities Dealers, Inc., Washington, D.C., on the brief for National Association of Securities Dealers, Inc. as amicus curiae.

Philip A. Loomis, Jr., Gen. Counsel, S.E.C., Washington, D.C., for Securities and Exchange Commission, as amicus curiae.

Before SMITH, KAUFMAN and HAYS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

On petition for rehearing, the opinion filed July 7, 1970 is withdrawn and the following opinion substituted therefor. The petition for rehearing is otherwise denied.

This is an appeal by Smith, Barney & Co., Inc., a stock brokerage firm (hereinafter 'Smith, Barney') from a judgment for damages on a determination by Judge Dudley B. Bonsal in the United States District Court for the Southern District of New York that Smith, Barney had violated Rules 10b-5 and 15c1-4 (17 C.F.R. §§ 240.10b-5 and 240.15c1-4), 1 promulgated under the Securities

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Exchange Act, 15 U.S.C. §§ 78j(b) and 78o(c), in not disclosing to appellee (Chasins) that it was making a market in the securities it sold Chasins in the over-the-counter market. Chasins has cross-appealed the district court's ruling that appellant had not violated its common law fiduciary duty to Chasins by the manner it handled the transactions between the two. 2 We find no error and affirm the judgment.

This action brought by Chasins in the district court under the Securities Act of 1933, 15 U.S.C. § 77a et seq., and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., for damages resulting from Smith, Barney's alleged violations of the Acts, and pendent common law violations, in handling Chasins' securities brokerage account was tried to the court without a jury. At the time the four transactions in question in his appeal occurred, 3 Chasins was the musical director of radio station WQXR in New York City and was the commentator on a musical program sponsored by Smith, Barney. According to Chasins it was due to this relationship that he opened his brokerage account with Smith, Barney by orally retaining it to act as his stock broker. Smith, Barney acted in at least two capacities in these transactions, namely as Chasins' stockbroker and as principal, i.e., the owner of the security being sold to Chasins. In all four transactions Smith, Barney sold the securities to Chasins in the over-the-counter market, and although it revealed in the confirmation slips that it was acting as principal and for its own account in selling to Chasins, Smith, Barney did not reveal that it was 'making a market' in the securities involved as was the fact. Nor did Smith, Barney disclose

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how much it had paid for the securities sold as principal to Chasins or that it had acted as an 'underwriter' as defined by the Securities Act of 1933 in connection with the distribution of securities of Welch Scientific Company and Howard Johnson Company, two of the companies whise securities Smith, Barney sold to Chasins.

Preceding the four sales of July and August, 1961, Smith, Barney sent Chasins a written analysis of his then current security holdings and its recommendations in regard to his objective of aggressive growth of his holdings. The recommendations included strong purchase recommendations for securities of Welch Scientific, Tex-Star Oil and Gas Corp., and Howard Johnson Company. Chasins and Thomas N. Delaney, Jr., an authorized agent of Smith, Barney had various telephone conversations prior to the transactions in question. Delaney testified that at least at the times of the four transactions in question Smith, Barney was 'making a market' in those securities, i.e., it was maintaining a position in the stocks on its own account by participating in over-the-counter trading in them; Smith, Barney's records indicated that at least from June 30, 1961, it had been trading in those stocks and had held positions in them during the times Chasins purchased the securities from it. 4 There was no testimony that Chasins had any knowledge or notice that Smith, Barney was 'making a market' in the securities of the three companies.

The decision of the district court was based on conflicting evidence as to whether Chasins had a 'discretionary account' with Smith, Barney and on the four transactions above. Although the court ruled that Smith, Barney had not violated any common law fiduciary duty to Chasins, Smith, Barney was found to have violated Rules 10b-5 and 15c1-4 (the latter in a supplemental opinion) in not disclosing its market making (or dealer) status in the securities that it recommended Chasins purchase, when Chasins followed that advice and purchased the securities and Smith, Barney was the other principal in the sales. Damages were awarded to Chasins in the amount of $18,616.64, with interest, which constituted the difference between the price at which Chasins purchased the securities from Cmith, Barney and the price at which he later sold them (prior to discovering Smith, Barney's market making in the securities).

I.

VIOLATIONS OF RULES

10b-5 AND 15c1-4

Smith, Barney's major contention in attacking the district court's finding of a violation of Rules 10b-5 and 15c1-4 is that failure to disclose its 'market making' role in the securities exchanged over the counter was not failure to disclose a material fact. Appellant

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contends that the district court's holding went farther than any other decision in this area and that no court had ever found failure to disclose a 'market making' role by a stock brokerage firm to a client-purchaser to be a violation of Rule 10b-5. Smith, Barney also asserts that all brokerage firms had followed the same practice and had never thought such disclosure was required; moreover, the SEC had never prosecuted any firm for this violation. However, even where a defendant is successful in showing that it has followed a customary course in the industry, the first litigation of such a practice is a proper occasion for its outlawry if it is in fact in violation. See Opper v. Hancock Securities Corp., 250 F.Supp. 688, 676 (S.D.N.Y.1966), aff'd 367 F.2d 157 (2d Cir. 1966). In any event, it cannot fairly be said that no one in the trade had ever considered such nondisclosure to be significant. 5 Appellant's own customers man (Delaney) testified that at the time (1961) he was disclosing to retail clients the firm's role as a market maker in a given security whenever he was aware of it.

Appellant also points to the fact that in over-the-counter trading, a market maker with an inventory in a stock is considered the best source of the security (the best available market); thus, the SEC has even punished a brokerage firm for not going directly to a firm with an inventory in a stock, i.e., interposing another firm between them. See e.g. In re Thomson & McKinnon, CCH Fed.Sec.L.Rep. P77,572, p. 83,203 (1967-69 SEC Rulings). However, the fact that dealing with a market maker should be considered by some desirable for some purposes does not mean that the failure to disclose Smith, Barney's market-making role is not under the circumstances of this case a failure to disclose a material fact. The question here is not whether Smith, Barney sold to Chasins at a fair price but whether disclosure of Smith, Barney's being a market maker in the Welch Scientific, Tex-Star Oil and Gas and Howard Johnson securities might have influenced Chasins' decision to buy the stock. See SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968) (en banc), cert. denied sub nom. Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969); List v. Fashion Park, Inc., 340 F.2d 457 (2d Cir. 1965), cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965). The test of materiality '* * * is whether a reasonable man would attach importance * * * in determining his choice of action in the transaction in question. * * *' List v. Fashion Park, Inc., supra, at 340 F.2d 462; SEC v. Texas...

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