Fox v. Kane-Miller Corp., Civ. No. 71-600-K.
Decision Date | 30 May 1975 |
Docket Number | Civ. No. 71-600-K. |
Parties | Frederick B. FOX et al. v. KANE-MILLER CORP. et al. |
Court | U.S. District Court — District of Maryland |
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John J. Ghingher, Jr., and Alfred H. Kreckman, Jr., Baltimore, Md., for plaintiffs.
Charles H. Miller, Daniel S. Greenfeld, and Marshall, Bratter, Greene, Allison & Tucker, New York City, Alan B. Lipson and Sherbow, Shea & Boyle, Baltimore, Md., for defendants.
Plaintiffs in this case alleged violations of the Securities Act of 1933, 15 U.S.C. §§ 77a-aa, the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-hh, the Maryland Securities Act, 3 Md.Code Ann. art. 32A, §§ 13-44 (1971 Repl.Vol.), and of common law fraud principles. Defendants denied liability and stated a counterclaim grounded in the 1934 Act and common law fraud. After a lengthy jury trial, 52 questions were submitted, pursuant to Federal Civil Rule 49(a), and answered by the jury. In their totality, those answers clearly added up to entitlement on the part of plaintiffs to judgments in their favor. Defendants have filed under Federal Civil Rule 50 for judgments in their favor in the case-in-chief and as to their counterclaim, notwithstanding the jury's answers to the special Rule 49(a) questions.
The facts of the case were to some degree stipulated and in other respects highly controverted. In February 1969 negotiations began between Frederick and Benjamin Fox (the "Foxes") and representatives of Kane Miller Corp. ("K-M") for the acquisition of three corporations owned by the Foxes (the "Fox Companies").1 Those negotiations took place in New York and in Maryland and were conducted both in person and over the telephone. They lasted from February 1969 to May 13, 1969. As indicated infra, there is disagreement about some of the events during those negotiations.
At a date subsequent to February 10, 1969 and prior to May 13, 1969, K-M furnished to the Foxes in connection with the negotiations a copy of a K-M prospectus dated February 5, 1969 (the "Prospectus"), which had been drawn up in connection with a secondary offering of $1,750,000 of K-M convertible debentures, 218,750 shares of K-M common stock which were issuable upon conversion of those debentures, and an additional 286,500 shares of K-M common stock. The offerors of the debentures and common stock under the secondary offering were shareholders who had previously acquired such debentures and stock in a separate transaction with K-M unrelated to the subsequent negotiations and agreement with the Foxes. The Prospectus was drawn up and filed prior to K-M's acquisitions of Carolina By-Products Company, Inc. (Carolina), The American Meat Packing Corporation (AMPAC) and R. K. Baking Company, all of which acquisitions occurred after February 5, 1969. Carolina was acquired by K-M on March 26, 1969 for $8,000,000 in cash, a $1,000,000 promissory note and 24,922 shares of K-M common stock. AMPAC was acquired by K-M on April 16, 1969 for $8,500,000 in cash and 35,945 shares of K-M common stock. R. K. Baking Company and its three affiliated companies were acquired by K-M on May 2, 1969 for $700,000 in cash, notes payable over three years in the aggregate amount of $1,437,500, plus the greater of the value of $462,500 in cash or 10,268 shares of K-M common stock, payable in January 1972.
Each of the acquisitions made by K-M in the first half of 1969 was immediately publicly announced. News releases were sent to the Wall Street Journal, the various ticker services, and to newspapers in or near communities in which there were situated K-M subsidiaries. Prior to February 1969 K-M had acquired Bayshore Foods, Inc., a small company located only a few miles from the Fox Companies. That apparently kindled local interest and caused a number of those press releases to be printed in the Easton Star Democrat, the only local newspaper, a weekly. On April 2, 1969 the following article appeared in the Easton Star Democrat:
On April 16, 1969, two issues later, the following article appeared in the Star Democrat (dealing with New York Loin which is not one of the complained of acquisitions):
On or about May 5, 1969, Frederick Fox received and read several times a copy of the 1968 K-M Annual Report. That report includes, inter alia, the following items:
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