965 F.2d 893 (10th Cir. 1992), 90-1371, O'Connor v. R.F. Lafferty & Co., Inc.

Docket Nº:90-1371.
Citation:965 F.2d 893
Party Name:Carol O'CONNOR, Plaintiff-Appellant, v. R.F. LAFFERTY & COMPANY, INC.; and Roy A. Foulke, Defendants-Appellees.
Case Date:May 28, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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965 F.2d 893 (10th Cir. 1992)

Carol O'CONNOR, Plaintiff-Appellant,


R.F. LAFFERTY & COMPANY, INC.; and Roy A. Foulke,


No. 90-1371.

United States Court of Appeals, Tenth Circuit

May 28, 1992

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[Copyrighted Material Omitted]

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        Alan C. Friedberg (Patricia A. Motz with him on the briefs) of Pendleton & Sabian, P.C., Denver, Colo., for plaintiff-appellant.

        Richard H. Goldberg (David H. Wollins and Michael A. Zahorik with him on the brief) of Brenman Raskin Friedlob & Tenenbaum, P.C., Denver, Colo., for defendants-appellees.

        Before BRORBY and McWILLIAMS, Circuit Judges, and ALLEY, [*] District Judge.

        BRORBY, Circuit Judge.

        Plaintiff appeals the district court's grant of summary judgment disposing of her federal and state securities law claims. She also appeals the district court's decision to submit her remaining state law tort claims to arbitration. We affirm in part, and reverse in part.

       I. FACTS

        In 1975, Carol M. O'Connor received a $200,000 property settlement from her divorce. She deposited this entire sum into an account with the investment firm of R.F. Lafferty & Company, Inc., to be handled by Roy Foulke. Ms. O'Connor's brother recommended Mr. Foulke who was a family friend and who had previously handled accounts for other members of Ms. O'Connor's family.

        Ms. O'Connor gave Mr. Foulke and Lafferty complete discretion to handle her account. Mr. Foulke knew Ms. O'Connor was not an experienced investor. In fact, prior to her association with Lafferty she had only invested in a savings account. Her husband or her father had always handled her finances. Ms. O'Connor informed Mr. Foulke the money she deposited represented virtually all of her assets. Ms. O'Connor also instructed Mr. Foulke she would need to rely on the $700 income generated from her deposit and the $800 maintenance payments from her ex-husband to meet her monthly living expenses. Ms. O'Connor also expected her account to generate sufficient income to cover the taxes on her alimony and on the account, the fees of her accountant and the servicing fees for her account. Mr. Foulke knew Ms. O'Connor relied on him to make all decisions concerning her securities account. Consequently, Mr. Foulke traded on Ms. O'Connor's account and notified her of the trading activity by sending a trade ticket within thirty-six hours and again at the end of the month in her statement.

        In 1985, because of the success in Ms. O'Connor's investment account, her husband was relieved of his alimony obligation. Understandably, this event changed the nature of her financial plan. From that point, Ms. O'Connor's account would have to generate $2,100 a month.

        Ms. O'Connor first became concerned about the value of her account in February 1987. Ms. O'Connor contends that from

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1982 through 1987 Mr. Foulke and Lafferty purchased several securities unsuitable for her investment objectives. Specifically, Ms. O'Connor objects to investments in oil and gas limited partnerships; units of stock and warrants in Patient Medical Systems Corporation; units of International Surgical and Pharmaceutical Corporation securities; units in Job Stores, Inc. securities; units in R.T. Acquisition Corporation securities; and units of Kerkoff Industries, Inc. securities. Ms. O'Connor requested a judgment for actual damages of $329,000 plus a reasonable rate of return on amounts unsuitably invested that earned no income.

        In 1988, Ms. O'Connor directed Mr. Foulke to stop all trading on her account. She brought suit against Mr. Foulke and against Lafferty for the acts of Mr. Foulke as a controlling person and under the doctrine of respondeat superior asserting seven claims: (1) violation of § 10(b) of the 1934 Securities Exchange Act and Rule 10b-5 promulgated thereunder; (2) breach of a fiduciary duty; (3) negligent failure to supervise; (4) professional negligence; (5) common law fraud; (6) intentional infliction of emotional distress; and (7) violations of Colo.Rev.Stat. §§ 11-51-123 and 11-51-125(2), (3) and (5). 1

        The district court granted Defendants' motion for summary judgment as to count one and subsequently dismissed counts five and seven. The court submitted the remaining state law claims to arbitration. The court later adopted the arbitrator's award of $30,000 in favor of Ms. O'Connor.

        Ms. O'Connor appeals all the district court's rulings. She asserts the district court erred in (1) granting summary judgment on her § 10(b) and Rule 10b-5 claim; (2) dismissing her claim for common law fraud; (3) dismissing her state securities claims; (4) compelling arbitration of her remaining state law claims; and (5) failing to award her attorneys' fees. 2


  1. Unsuitability

            The district court granted Defendants' motion for summary judgment against Ms. O'Connor's § 10(b) and Rule 10b-5 claim. The court found the Defendants did not possess the requisite scienter or intent to defraud to sustain such a claim. The court also found that although the Defendants did invest in securities unsuitable for Ms. O'Connor's investment objectives, Ms. O'Connor could not demonstrate her justifiable reliance on the purchases where she had information the securities may be unsuitable and acted recklessly by failing to investigate. The court found persuasive deposition testimony by Ms. O'Connor where she admitted Mr. Foulke did not intend to defraud or hurt her. She further testified he did not willfully withhold information or lie to her. O'Connor v. R.F. Lafferty & Co., Inc., No. 89 -F-55 (D.Colo. Nov. 7, 1989).)

            Ms. O'Connor asserts several errors by the district court. She claims the court did not understand the nature of the allegations; facts existed to establish the requisite scienter; the court erred by relying on Ms. O'Connor's non expert opinion testimony; and Ms. O'Connor's reliance was justified or in the alternative, reliance need not be shown.

            We review the district court's grant of summary judgment de novo applying Federal Rule of Civil Procedure 56(c). Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate where no issue of material fact remains and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991).

            Section 10(b) of the 1934 Securities Exchange Act makes it unlawful for any person, in connection with the purchase or sale of a security, to use or employ any manipulative or deceptive device in contravention

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    of the rules and regulations prescribed by the Commission. 15 U.S.C. § 78j(b). Pursuant to its rule-making authority, the Commission prescribed Rule 10b-5 which makes it unlawful for any person, in connection with the purchase or sale of a security

            (a) To employ any device, scheme, or artifice to defraud,

            (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or

            (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.

            17 C.F.R. § 240.10b-5 (1990).

    "As a general matter, however, private § 10(b)/Rule 10b-5 damage claims can be said to require: 1) the use of jurisdictional means 2) to implement a deceptive or manipulative practice (with the requisite scienter) 3) in connection with 4) the purchase or sale 5) of a security 6) causing 7) damages."

            Craighead v. E.F. Hutton & Co., Inc., 899 F.2d 485, 493 (6th Cir.1990) (quoting Wilsmann v. Upjohn Co., 775 F.2d 713, 719 (6th Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2893, 90 L.Ed.2d 980 (1986)).

            Ms. O'Connor claims Defendants bought securities which were unsuitable for her investment needs. Federal courts recognize such a claim as a violation of § 10(b) and Rule 10b-5. Clark v. John Lamula Investors, Inc., 583 F.2d 594, 599-600 (2d Cir.1978).

            The unsuitability doctrine is premised on New York Stock Exchange Rule 405--Know Your Customer Rule 3 and the National Association of Securities Dealers Rules of Fair Practice. 4 In Re Trujillo, 1987 SEC LEXIS 1978, at * 60-61 (April 23, 1987); Mark C. Jensen, Abuse of Discretion Claims Under Rule 10b-5: Churning, Unsuitability, and Unauthorized Transaction, 18 Sec.Reg.L.J. 374, 380 (1991). 5 Unsuitability claims can be analyzed as omission cases or fraudulent practices cases. See City of San Jose v. Paine, Webber, Jackson & Curtis Inc., No. C 84-20601 RFP, 1991 WL 352485, * 1, 1991 U.S.Dist. LEXIS 8318, at * 1 (N.D.Ca. June 6, 1991); Trujillo, at *61.

            Some courts examining a § 10(b), Rule 10b-5 unsuitability claim have analyzed it simply as a misrepresentation or failure to disclose a material fact. See, e.g., Lefkowitz v. Smith Barney, Harris Upham & Co., Inc., 804 F.2d 154, 155 (1st Cir.1986). In such a case, the broker has omitted telling the investor the recommendation is unsuitable for the investor's interests. The court may then use traditional laws concerning omission to examine the claim.

            Under a misrepresentation or omission theory, a plaintiff can establish § 10(b), Rule 10b-5 liability by showing that in connection with the purchase or sale of a security--the broker made an untrue statement of a material fact, or failed to state a material fact, that in so doing, the broker acted knowingly with intent to deceive or defraud, and that plaintiff relied on the misrepresentations, and sustained damages as a proximate result...

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