Swenson v. Engelstad

• Decision Date: 24 September 1980
• Docket Number: No. 79-1662,79-1662
• Citation: 626 F.2d 421
• Parties: Fed. Sec. L. Rep. P 97,639 Cal SWENSON and Carolyn Swenson, Plaintiffs-Appellants, v. Richard and Ralph ENGELSTAD, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 421

626 F.2d 421

Fed. Sec. L. Rep. P 97,639

Cal SWENSON and Carolyn Swenson, Plaintiffs-Appellants, v. Richard and Ralph ENGELSTAD, Defendants-Appellees.

No. 79-1662.

United States Court of Appeals,

Fifth Circuit.

Sept. 24, 1980.

Whittenburg, Whittenburg & Schachter, Cary Schachter, Amarillo, Tex., for plaintiffs-appellants.

Sanders, Saunders, Brian, Finney & Thomas, Robert H. Smith, Amarillo, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before HILL, RUBIN and ANDERSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Plaintiff Cal and Carolyn Swenson commenced this action against defendants Ralph Engelstad and Richard Engelstad, ¹ seeking to recover damages sustained as a result of their purchase of unregistered securities. Recovery was sought under § 12(1), § 12(2), and § 15 of the Securities Act of 1933, 15 U.S.C.A. § 77l (1), (2), § 77o ; § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b), SEC Rule 10b-5, 17 C.F.R. § 240.10b-5; and § 17.50 of the Texas Deceptive Trade Practices Consumer Protection Act, Tex.Bus. & Com.Code Ann. tit. 2, § 17.50 (Vernon Supp.1980). Prior to trial, plaintiffs' state law claims were dismissed. The remainder of the claims were submitted to a jury on special interrogatories. Based on the jury's answers, the district court entered judgment for the defendants on all the federal claims.

I. Facts

In 1975, Ralph founded the Southwest Hockey League (SHL). At all pertinent times, he was the President of the SHL and its sole stockholder. Shortly after the league was formed, Richard purchased the right to start an SHL franchise in Amarillo, Texas. ² The now defunct Amarillo Wranglers hockey team was owned by Amarillo Wranglers, Inc. The corporation initially issued 75 shares of stock. Fifty shares were purchased by Richard, and 5 shares each were purchased by Tuggie Tuckness, Bill O'Grady, Billy Parker, Tim Guss, and Ray Paetzold. ³ Before the beginning of the first season, Cal Swenson was hired to coach the Wranglers. In early 1976, the Swensons became interested in purchasing an ownership interest in Amarillo Wranglers, Inc. After several negotiating sessions between the Swensons, Richard, and Ralph, the Swensons agreed to purchase Richard's 50 shares, Tuckness's 5 shares, O'Grady's 5 shares, and Parker's 5 shares. ⁴ The purchase price for the 65 shares was $116,000. It is undisputed that the stock of Amarillo Wranglers, Inc., has never been registered with the Securities Exchange Commission.

II. § 10(b), Rule 10b-5

Plaintiffs alleged that Richard and Ralph made various material misrepresentations in connection with the sale. The jury found that the Swensons "intentionally refused to investigate the facts bearing upon their investment in the stock of Amarillo Wranglers, Inc." This amounts to a finding that the plaintiffs failed to exercise "due diligence" in purchasing the stock. Due diligence is an element of a cause of action under § 10(b) and Rule 10b-5. Dupuy v. Dupuy, 551 F.2d 1005, 1014 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977). The jury's finding, which is supported by the record, bars any recovery under § 10(b) and Rule 10b-5.

III. § 12(1), § 15

A. The Prima Facie Case

The Securities Act of 1933 imposes strict liability on offerors and sellers of unregistered securities. ⁵ Hill York Corp. v. American International Franchises, Inc., 448 F.2d 680, 686 (5th Cir. 1971). Recovery may be had under § 12(1) ⁶ "regardless of whether (the purchaser) can show any degree of fault, negligent or intentional, on the seller's part." Id. There are three elements to a prima facie case: (1) the sale or offer to sell securities; (2) the absence of a registration statement covering the securities; and (3) the use of the mails or facilities of interstate commerce in connection with the sale or offer. Doran v. Petroleum Management Corp., 545 F.2d 893, 899 (5th Cir. 1977); Lewis v. Walston & Co., Inc., 487 F.2d 617, 621 (5th Cir. 1973).

Section 15 of the 1933 Act imposes liability on any person who "controls" a seller or offeror of unregistered securities. ⁷ See 15 U.S.C.A. 77o. The plaintiff's burden under § 15 is to establish control. Hill York, 448 F.2d at 694. The defendant can rebut a prima facie case of controlling person liability with evidence that he "had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist." ⁸ 15 U.S.C.A. § 77o ; see Hill York, 448 F.2d at 695 n.22; Safeway Portland Employees' Federal Credit Union v. Wagner & Co., Inc., 501 F.2d 1120, 1124 (9th Cir. 1974).

B. The Private Offering Exemption

Section 4(2) of the 1933 Act, 15 U.S.C.A. § 77d(2), exempts from the registration requirements "transactions by an issuer not involving any public offering." ⁹ The so-called private offering exemption is an affirmative defense which must be raised and proved by the defendant. See, e. g., SEC v. Ralston Purina Co., 346 U.S. 119, 126, 73 S.Ct. 981, 985, 97 L.Ed. 1494 (1953); Doran, 545 F.2d at 893; Woolf v. S.D. Cohn & Co., 515 F.2d 591, 608-09 (5th Cir. 1975), vacated and remanded on other grounds, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976). Whether an offering is public or private is a question of fact which must be resolved in light of the particular circumstances of each case. See Hill York, 448 F.2d at 687.

There are four factors that we have found to be useful reference points in evaluating the character of a given offering:

1. The number of offerees and their relationship to each other and to the issuer. ¹⁰

2. The number of units offered.

3. The size of the offering.

4. The manner of the offering. ¹¹

SEC v. Continental Tobacco Co. of S.C., 463 F.2d 137, 158 (5th Cir. 1972).

Although this test appears to emphasize quantitative factors, the ultimate issue in determining the availability of the private offering exemption is "whether the particular class of persons affected need the protection of the Act." Id. For this reason, we have held that the defendant must establish that each and every offeree either had the same information that would have been available in a registration statement or had access to such information. ¹² See SEC v. Spence & Green, 612 F.2d 896, 902 (5th Cir. 1980); Doran, 545 F.2d at 903-04, 905-06.

C. Richard Engelstad's Liability

Plaintiffs' case against Richard was based on his having sold them 50 shares of unregistered Amarillo Wranglers, Inc. stock and on his having been a controlling person with respect to the 5 shares purchased from O'Grady and the 5 shares purchased from Tuckness.

It is conceded that the second and third elements of a § 12(1) prima facie case are present in this case. The only issue, therefore, is whether Richard was a seller within the meaning of the statute.

Richard clearly was a seller in the ordinary sense of the word; he parted with title to 50 shares of stock in return for a sum of money. Nevertheless, he argues that this Circuit has held that one is not a seller unless his actions were a proximate cause of the sale. This argument was made at trial and accepted by the trial judge. The jury was asked, in Special Interrogatory No. 1, to decide whether the actions of Richard were a proximate cause of the sale:

Do you find from a preponderance of the evidence that the actions of the Engelstads were a proximate cause of the Swensons' purchase of the stock in question?

Answer for each of the Engelstads:

"His actions were a proximate cause"

or

"His actions were not a proximate cause"

Answer: RALPH ENGELSTAD:

RICHARD ENGELSTAD:

"PROXIMATE CAUSE" means that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred; and in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

In Hill York Corp. v. American International Franchises, Inc., we were presented with the argument that § 12(1) does not reach persons other than those who actually part with title to securities. Declining to read § 12(1) as requiring privity between plaintiff and defendant, we held that the appropriate inquiry is whether " 'the injury to the plaintiff flow(ed) directly and proximately from the actions of this particular defendant.' " 448 F.2d at 693 (citing Lennerth v. Mendenhall, 234 F.Supp. 59, 65 (N.D. Ohio 1964)). Nowhere in Hill York did we so much as intimate that our adoption of a proximate cause test was meant to narrow the class of persons subject to liability under § 12(1). Rather, it is clear that our intent was to give a liberal construction to the word seller to comport with the remedial purposes of the 1933 Act. Our later opinion in Lewis v. Walston & Co. confirms that Hill York did not change the law with respect to those who actually part with title to securities. In Lewis, after noting that the defendant "was not a 'seller' in the most common sense of that word," 487 F.2d at 621, we stated:

That, however, is not conclusive under § 12(1), for the courts have recognized that other parties who participate in the negotiations of or arrangements for the sale of unregistered securities 'sell' those securities within the meaning of § 12(1). . . . In Hill York, this Court announced the test applied in this Circuit to determine whether a participant in the arrangements for a sale 'sells' securities within the meaning of § 12(1).

Id. at 621-22 (emphasis added).

Today we make it clear that one who parts with title to securities in exchange for consideration is a seller for purposes of § 12(1). To such a person, the proximate cause test is inapplicable. Therefore, with respect to Richard, we...