Fischer v. Kletz, 65 Civ. 787.
Citation | 266 F. Supp. 180 |
Decision Date | 05 April 1967 |
Docket Number | No. 65 Civ. 787.,65 Civ. 787. |
Parties | Stephen FISCHER et al., Plaintiffs, v. Michael KLETZ et al., Defendants (and fifteen other actions consolidated therewith). |
Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Pomerantz, Levy, Haudek & Block, New York City, for plaintiffs.
Kaufman, Taylor, Kimmel & Miller, New York City, for plaintiffs.
Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for defendant Peat, Marwick, Mitchell & Co.
Securities and Exchange Commission, Washington, D. C., amicus curiae.
In October, 1966, plaintiffs in this class action1 moved against defendant Peat, Marwick, Mitchell & Co. ("PMM") for further discovery under Rule 34, F.R. Civ.P., based in part upon the allegations set forth in paragraphs 25 through 25.3 of the second consolidated amended complaint (hereinafter "the complaint"). PMM opposed this motion, and, in addition, cross-moved against the plaintiffs, pursuant to Rule 12(b) (1) and/or 12(b) (6), F.R.Civ.P., for an order by this court dismissing paragraphs 25-25.3 of the complaint on the grounds that the court has no jurisdiction over the subject matter contained therein and/or that the allegations of these paragraphs fail to state a claim upon which relief can be granted. Plaintiffs and the Securities and Exchange Commission ("SEC"), which has filed an amicus curiae brief, strenuously oppose the cross-motion.
The discovery motion was disposed of by this court in a memorandum opinion, dated November 1, 1966; this opinion will deal with PMM's cross-motion to dismiss paragraphs 25-25.3 of the complaint.
For the purposes of this motion, the parties agree in principle that the facts urged upon the court by the plaintiffs must be accepted as true and that the challenged portions of the complaint must be upheld if they are supported by any viable rule of law. There follows a summarization of the facts which reasonably can be read from the formal complaint allegations, particularly those under fire in this motion.
Sometime early in 1964, PMM, acting as an independent public accountant, undertook the job of auditing the financial statements that Yale Express System, Inc. ("Yale"), a national transportation concern, intended to include in the annual report to its stockholders for the year ending December 31, 1963. On March 31, 1964, PMM certified the figures contained in these statements. On or about April 9, the annual report containing the certification was issued to the stockholders of Yale. Subsequently, on or about June 29, 1964, a Form 10-K Report, containing the same financial statements as the annual report, was filed with the SEC as required by that agency's rules and regulations.
At an unspecified date "early in 1964", probably shortly after the completion of the audit, Yale engaged PMM to conduct so-called "special studies" of Yale's past and current income and expenses. In the course of this special assignment, sometime presumably before the end of 1964,2 PMM discovered that the figures in the annual report were substantially false and misleading.
Not until May 5, 1965, however, when the results of the special studies were released, did PMM disclose this finding to the exchanges on which Yale securities were traded, to the SEC or to the public at large.
Furthermore, during the course of PMM's special studies, Yale periodically announced to PMM an intention to issue several interim statements and reports to show the company's 1964 financial performance. In at least two instances, Yale was told by PMM that figures derived from the special studies could not be used as a basis for these interim statements; in addition, PMM recommended that the figures developed by Yale through its internal accounting procedures be used in the reports.
Yale thereupon issued several interim statements containing figures which were not compiled, audited or certified by PMM. As in the case of the annual and SEC reports, later developments revealed that the figures contained in these interim statements were materially false and misleading.
Plaintiffs allege that, from the compilation of figures for 1964 and its knowledge of the contents of the interim reports, PMM knew that the figures contained in those statements were grossly inaccurate. No disclosure of this finding has yet been made to the exchanges, the SEC or the public.
Within this alleged factual context, the plaintiffs assert that PMM is liable in damages for its failure to disclose not only that the certified financial statements in the 1963 annual report contained false and misleading figures but also that the interim statements issued by Yale were inaccurate. Because the bases for such claimed liability are grounded on distinctly different legal theories, the issues unique to each area will be discussed and analyzed separately.
Plaintiffs attack PMM for its silence and inaction after its employees discovered, during the special studies, that the audited and certified figures in the financial statements reflecting Yale's 1963 performance were grossly inaccurate. They contend that inasmuch as PMM knew that its audit and certificate would be relied upon by the investing public,3 the accounting firm had a duty to alert the public in some way that the audited and certified statements were materially false and inaccurate. PMM counters that there is no common law or statutory basis for imposing such a duty on it as a public accounting firm retained by the officers and directors of Yale.
Following the certification, PMM switched its role to that of an accountant employed by Yale to undertake special studies which were necessitated by business demands rather than by statutory or regulatory requirements. In this sense, it can be seen that during the special studies PMM was a "dependent public accountant" whose primary obligations, under normal circumstances, were to its client and not the public.
It was, of course, during the conduct of the special studies that the inaccuracies in the audited and certified statements were discovered. The time of this discovery makes the questions here involved difficult and unique. On the basis of the Commission's Touche, Niven opinion, an accountant has a duty to the investing public to certify only those statements which he deems accurate. This duty is not directly involved here, however, for the inaccuracies were discovered after the certification had been made and the 1963 annual report had been released. PMM maintains, therefore, that any duty to the investing public terminated once it certified the relevant financial statements. Plaintiffs, of course, contend to the contrary. Thus, the serious question arises as to whether or not an obligation correlative to but conceptually different from the duty to audit and to certify with reasonable care and professional competence5 arose as a result of the circumstance that PMM knew that investors were relying upon its certification of the financial statements in Yale's annual report.
Plaintiffs' claim is grounded in the common law action of deceit, albeit an unusual type in that most cases of deceit involve an affirmative misrepresentation by the defendant.6 Here, however, plaintiffs attack PMM's nondisclosure or silence.
Section 551(2) lists the instances when the requisite duty to disclose arises. For present purposes, the following portion from that subsection is important:
"One party to a...
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