Dillon v. Militano, 89 Civ. 6111 (MP).

• Decision Date: 06 March 1990
• Docket Number: No. 89 Civ. 6111 (MP).,89 Civ. 6111 (MP).
• Citation: 731 F. Supp. 634
• Parties: John DILLON, individually and on behalf of all others similarly situated, Plaintiff, v. Vincent MILITANO, Milton Sonneberg, Moore & Schley Cameron & Co., Stanley Chase and Securities Settlement Corp., Defendants.
• Court: U.S. District Court — Southern District of New York

731 F. Supp. 634

John DILLON, individually and on behalf of all others similarly situated, Plaintiff, v. Vincent MILITANO, Milton Sonneberg, Moore & Schley Cameron & Co., Stanley Chase and Securities Settlement Corp., Defendants.

No. 89 Civ. 6111 (MP).

United States District Court, S.D. New York.

March 6, 1990.

Abbey & Ellis, New York City by Lee Squitieri, for plaintiff.

Mayer, Brown & Platt, New York City by Mark Kassowitz and Hector Torres, for defendant Securities Settlement Corp.

McGuire, Woods, Battle & Boothe, Washington, D.C. by Thomas McGonigle, for defendant Moore & Schley, Cameron & Co.

OPINION

MILTON POLLACK, Senior District Judge:

Plaintiff, a putative class representative, filed suit against the defendants alleging violations of Sections 9(a)(2), (3), (4), 10(b) and 20 of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78i, 78j and 78t, as amended, and Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder.¹

Plaintiff alleged that the defendants had engaged in a scheme to corner the market in the common stock of Chase Medical Group, Inc., listed and traded on the American Stock Exchange ("AMEX" hereafter).

Defendant Securities Settlement Corp. has moved under Rule 12(b)(6), Fed.R. Civ.P. to dismiss the complaint against it for failure to state a claim upon which relief can be granted. Securities Settlement Corp. also seeks to dismiss the complaint pursuant to Rule 9(b), Fed.R.Civ.P.

For the reasons stated below, Securities Settlement Corp.'s 12(b)(6) motion will be granted.

Background

Vincent Militano and Milton Sonneberg, two brokers employed by Moore & Schley, Cameron & Co. ("Moore & Schley"), allegedly schemed to corner the market in Chase Medical Group, Inc., common stock.² From August, 1988 through January, 1989, when the AMEX suspended trading in Chase Medical stock, Militano and Sonneberg bought up 108% of the public float of the stock. The price of the stock rose from $4.50 per share to a high of $13.625.

In order to make the scheme successful, Dillon and Militano used customer accounts without authorization, purchased shares from naked short sellers and fraudulently obtained extensions of the time to meet margin requirements.

Securities Settlement Corp. ("SSC"), Moore & Schley's customary clearing broker, cleared all the trades in question.

The three Counts of the complaint make undifferentiated charges against the various defendants.³

In order to state a claim against SSC, the plaintiff must show a primary violation of one of the applicable sections of the 1934 Act or a secondary violation through "control" or by aiding and abetting validly pleaded.

Primary Violations

1. Section 9

The complaint explicitly removes SSC from primary liability for § 9 violations. "Defendants (other than ... Securities Settlement Corp.)" accumulated the position in Chase Medical stock. Complaint ¶ 6.

2. Section 10(b) and Rule 10b-5

While there is no specific allegation that SSC violated § 10(b) and Rule 10b-5, several paragraphs of the complaint and Counts II and III allege that SSC or "all defendants" knowingly and/or recklessly made material misrepresentations and omissions.⁴

Clearing firms, such as SSC, relieve brokerage firms, such as Moore & Schley, of the huge costs associated with "back-office" operations. The Securities and Exchange Commission, and many stock exchanges, permit brokerage firms like Moore & Schley to contract with clearing firms like SSC, who, for a fee, will meet certain record-keeping and other regulatory requirements for the brokerage firm. The brokerage firm typically is known as the "introducing firm," and the clearing firm handles the "mechanical, record-keeping functions related to the clearance and settlement of various transactions" in the accounts of the introducing firm's customers. See, e.g., Lester v. Basner, 676 F.Supp. 481, 482 (S.D.N.Y.1987).

Although some courts have imposed primary liability against clearing brokers, the true relationship of the clearing broker to the introducing broker and to the latter's customer has not been recognized. See, e.g., Cothren v. Donaldson, Lufkin & Jenrette Securities Corp., No. TY-82-363-CA, slip op. (E.D.Tex.1982) (clearing broker held liable for failing to police properly its "agent's," i.e. the introducing broker, acts) (preliminary findings later vacated, but not replaced, when settlement was reached); Hawkins v. Merrill Lynch, Pierce, Fenner & Beane, 85 F.Supp. 104, 121 (W.D.Ark. 1949) (clearing broker supplying wire to introducing broker held liable to customer for its failure to "control" the introducing broker and to make sure orders were legally executed).

Even if Cothren and Hawkins were correct on their narrow facts, in this case SSC was merely performing bookkeeping functions for Moore & Schley. In no way, shape or form does the complaint plead that SSC was making decisions regarding the accounts. The pleading indicates that SSC simply executed the Chase Medical Group transactions along with the other transactions sent to it by Moore & Schley. SSC was not in a fiduciary relationship with Moore & Schley's customers. This being so, no primary liability may attach to SSC. See Faturik v. Woodmere Securities, Inc., 442 F.Supp. 943, 945 (S.D.N.Y. 1977) ("Certainly, one requirement for direct liability under § 10(b), namely, `control' over plaintiff's account, would be lacking as to the clearing broker, since the complaint does not allege that the clearing broker was empowered to act on plaintiff's behalf ... Furthermore, if the clearing broker was performing mere clerical functions on orders placed by the introducing broker, we would be hard pressed to find that the clearing broker had the requisite `scienter,' that is, `intent to deceive, manipulate, or defraud.'" citations omitted); Livingston v. Weis, Voisin, Cannon, Inc., 294 F.Supp. 676, 683 (D.N.J.1968) ("It appearing that the clearing broker, even according to plaintiffs' Complaint, had nothing to do with the actual purchasing and selling decisions with respect to plaintiffs' account with the introducing broker, but instead served only as a bookkeeper for the account, these counts will be dismissed as failing to state a claim against the clearing broker."); see also, Congregation of the Passion v. Kidder Peabody & Co., 800 F.2d 177, 183 (7th Cir.1986) ("In short, the dealers acted merely as the instrument for executing the transactions orchestrated by Mr. Newell. This relationship did not create a duty to disclose, see Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 ... (1972)").

In this case, as in Faturik and in Livingston, the clearing broker is not charged in facts well pleaded that it was going beyond merely performing bookkeeping functions.

3. Regulation T

Although no specific Count in the complaint alleges a violation of Regulation T, 12 C.F.R. §§ 220.1-220.18, ¶¶ 6, 14, 36 and 44 of the complaint seem to set out some elements of violations of that Regulation.

Regulation T applies to "creditors." SSC is covered by the regulation because:

"Creditor" means any broker or dealer (as defined in sections 3(a)(4) and 3(a)(5) of the Act), any member of a national securities exchange or any person associated with a broker or dealer....

12 C.F.R. § 220.2(b). SSC is a broker/dealer registered pursuant to § 15(b) of the 1934 Act and is also a member of the NYSE, AMEX, NASD and several other national securities exchanges.

¶ 36 of the complaint sets out the elements of a violation of 12 C.F.R. §§ 220.4 and 220.8, i.e. the duty to make a margin call and liquidate the holdings if the margin is not met, but it goes on to state:

If a customer of the Moore & Schley Group failed to make a timely payment required by Regulation T, a "Regulation T Call" or demand for payment was sent to the customer by Moore & Schley's clearing broker, SSC ... the Moore & Schley Group submitted or caused the submission of false statements to the appropriate securities exchange in order to obtain extensions of time for payment.

In other words, SSC did exactly what was required of them under Regulation T. Moore & Schley violated the terms of the regulation.⁵

¶¶ 6, 14 and 44 of the complaint set out the elements of a violation 12 C.F.R. § 220.8. Allegations are made that SSC cleared short sales knowing that the sellers did not have and could not readily obtain the securities.

Even if SSC violated Regulation T, it is of no help to the plaintiff. Regulation T was promulgated pursuant to section 7 of the 1934 Act, 15 U.S.C. § 78g.

Prior to 1985, the Second Circuit allowed private actions for violations of § 7. Pearlstein v. Scudder & German, 429 F.2d 1136 (2d Cir.1970) (Judge Friendly dissented from the majority opinion), cert. denied, 401 U.S. 1013, 91 S.Ct. 1250, 28 L.Ed.2d 550 (1971) (Pearlstein I). The holding of Pearlstein I, however, was often questioned.

The addition of § 7f casts doubt on the continued viability of the rationale of our prior holding.

Pearlstein v. Scudder & German, 527 F.2d 1141, 1145 n. 3 (2d Cir.1975) (Pearlstein II). See also, Bassler v. Central National Bank, 715 F.2d 308 (7th Cir.1983) (no private right of action under § 7); Walck v. American Stock Exchange, 687 F.2d 778 (3d Cir.1982) (same) cert. denied, 461 U.S. 942, 103 S.Ct. 2118, 77 L.Ed.2d 1300 (1983); Gutter v. Merrill Lynch, Pierce, Fenner & Smith, 644 F.2d 1194 (6th Cir.1981) (same), cert. denied, 455 U.S. 909, 102 S.Ct. 1256, 71 L.Ed.2d 447 (1982); Stern v. Merrill Lynch, Pierce, Fenner & Smith, 603 F.2d 1073 (4th Cir.1979) (same); Utah State University v. Bear, Stearns & Co., 549 F.2d 164 (10th Cir.) (same), cert. denied, 434 U.S. 890, 98 S.Ct. 264, 54 L.Ed.2d 176 (1977).

In 1985, the Second Circuit joined the 3rd, 4th, 6th, 7th and 10th circuits in holding that no private right of action under § 7 exists. Bennett v. United States Trust Co., 770 F.2d 308, 313 (2d Cir.1985):

In sum, the addition of section 7(f) 15 U.S.C. § 78g(f) and

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