Levine v. Seilon, Inc.
Decision Date | 01 March 1971 |
Docket Number | Docket 35226.,No. 379,379 |
Citation | 439 F.2d 328 |
Parties | Florence K. LEVINE, as Executrix of the Last Will and Testament of Irving Levine, Deceased, Plaintiff-Appellant, v. SEILON, INC., Defendant-Appellee. |
Court | U.S. Court of Appeals — Second Circuit |
Stanley Nemser, New York City (Mortimer A. Shapiro, Nemerov & Shapiro, and Nemser & Nemser, New York City, of counsel), for plaintiff-appellant.
William S. Greenawalt, New York City (James B. Weidner, Royall, Koegel & Wells, New York City, of counsel), for defendant-appellee.
Theodore Sonde, Asst. Gen. Counsel, S.E.C. (Philip A. Loomis, Jr., Gen. Counsel, Walter P. North, Associate Gen. Counsel, S.E.C., Washington, D. C., of counsel), for Securities and Exchange Commission as amicus curiae.
Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.
This appeal from an order of the District Court for the Southern District of New York, dismissing a stockholder's complaint against a corporation for failure to state a claim upon which relief can be granted, F.R.Civ.P. 12(b) (6), presents a novel contention which again demonstrates the astonishing inventiveness of counsel in invoking the SEC's Rule 10b-5 issued pursuant to § 10(b) of the Securities Exchange Act, and a related claim for the same relief under § 14(e) added to the Act in 1968. The arguments have taken an exceedingly wide range; indeed, the SEC as amicus urges that we utilize this unusual case as a vehicle for overruling the purchaser-seller requirement of Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2 Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), despite our several recent refusals to do so, see, e. g., Iroquois Industries, Inc. v. Syracuse China Corp., 417 F.2d 963 (2 Cir. 1969), cert. denied, 399 U.S. 909, 90 S.Ct. 2199, 26 L.Ed.2d 561 (1970). We find it unnecessary to consider most of these arguments since affirmance is required even if we were to assume arguendo that most of appellant's contentions are correct.
Although this appeal questions the dismissal both of the original complaint — with leave to amend as to the § 10(b) and Rule 10b-5 claim but not as to the § 14(e) claim — and of the amended one, it will be convenient to state the case in terms of the amended complaint, which is fuller and better pleaded. It will also simplify matters if we disregard the death of the original plaintiff, Irving Levine, and the substitution of Mrs. Levine, his executrix.
On May 31, 1968, defendant Seilon, Inc., a Delaware corporation, had outstanding 1,438,121 shares of Common, 12,521 shares of Prior Preferred carrying a $4.50 cumulative dividend, 18,792 shares of Class A Preferred stock, with a $5.00 cumulative dividend, and 31,238 Common Stock Warrants. The Common was traded on the New York Stock Exchange. The Prior Preferred was redeemable at any time at $100 per share and the Class A Preferred at $102, in each instance together with unpaid accumulated dividends. Neither class of preferred carried a conversion privilege. Levine owned 500 shares of Class A Preferred from May 1965 until the redemption in January 1969, of which more hereafter.
Seilon's certificate of incorporation contained various restrictions for the benefit of the preferred stockholders. Without the affirmative vote at a meeting or the written consent with or without a meeting of two-thirds of the Prior Preferred shares, Seilon could not take any of the acts set forth in the margin.1 Without like vote or consent of both classes of preferred, it could not take action of the sort described in the accompanying footnote.2
All of these representations, the complaint alleged, were false and misleading since Seilon's real intention was to sell its stockholdings in certain subsidiaries and the assets of certain of its divisions in order to raise the cash needed for the redemption. Seilon, we are told, never intended to make effective the invitation to the preferred stockholders to exchange their shares for common stock.
The amended complaint proceeded to allege that although the preferred shareholders had earlier declined to approve the creation of new funded debt, "Seilon by means of these misrepresentations fraudulently induced the Prior Preferred and Class A Preferred stockholders to give their requisite two-thirds consent on June 21, 1968 to new credit arrangements for Seilon, which Seilon entered into on or about July 8, 1968." The complaint, however, did not further identify these "new credit arrangements." Other paragraphs alleged various transactions by Seilon, none of which are claimed to have required or to have received the consent of the preferred stockholders:
About September 10, 1968, Seilon filed a Form S-1 Registration Statement with the SEC in respect of 203,534 shares of Common Stock, to be offered in exchange for the preferred in a ratio of 6½ shares to one. The common stock had attained a price of 21 3/8 on September 6 and stayed in that general area through the December redemption announcement; the market prices of the preferred stocks advanced to reflect the anticipated exchange. Seilon represented in the Registration Statement that it did not intend to call any preferred stock prior to the expiration of the invitation for tenders, which it proposed to commence as soon as practicable after the registration had become effective.3
The initial complaint, which was much less detailed, had invoked not only § 10(b) of the Securities Exchange Act and Rule 10b-5 but also § 14(e).5 Judge McLean dismissed the claim of the original complaint under § 10(b) and Rule 10b-5 on the ground that Levine's purchase prior to May 1965 could not have been induced by Seilon's alleged fraud in the summer and fall of 1968 and there was no...
To continue reading
Request your trial-
Salgado v. Piedmont Capital Corp.
...549, 550-551, 7 L.Ed.2d 512 (1962); La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 462, 465 (9 Cir., 1973); Levine v. Seilon, Inc., 439 F.2d 328, 335 n.10 (2 Cir., 1971); See Board of School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 846, 43 L.Ed.2d 74 IV. Based upon the foregoing f......
-
Marbury Management, Inc. v. Kohn
...is legally, that is, proximately, caused by the misrepresentation. Restatement (Second) of Torts § 548A (1977). See Levine v. Seilon, 439 F.2d 328, 333-34 (2d Cir. 1971). Oleck v. Fischer, Fed.Sec.L.Rep. (CCH) P 96,898, at 95,702-03 (S.D.N.Y.1979), aff'd (2d Cir. 1980), in effect requires t......
-
Lazzaro v. Manber
...buyer of securities is entitled to recover only the excess of what he paid over the value of what he got ..." Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir.1971), and the "question is not what the plaintiff might have gained, but what he lost by being deceived into the purchase." Estate......
-
Abrahamson v. Fleschner
...as early as 1965, they undoubtedly basked in the euphoria of the bull market described by Judge Friendly in Levine v. Seilon, Inc., 439 F.2d 328, 335 (2d Cir. 1971). Conversely, however, when the market turned down, it turned down for all including the defendants. This practical considerati......