Kirshner v. U.S.

Citation603 F.2d 234
Decision Date19 July 1979
Docket NumberD,No. 315,315
PartiesFed. Sec. L. Rep. P 96,617, Fed. Sec. L. Rep. P 96,936 Alfred KIRSHNER, Plaintiff-Appellant, v. UNITED STATES of America, Secretary of the Treasury, Commissioner of I. R. S., Alvin D. Lurie, in his capacity as Assistant Commissioner Employer Plans and Exempt Organizations, I. R. S., Bernard Golberg, Reuben Mitchell, Joseph Shannon, Robert Christen, Victor Condello, Harrison J. Goldin, James Regan, Individually and as trustees of the Teachers Retirement System of the City of New York, and Isaiah Robinson, Defendants-Appellees. ocket 77-6104.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Alfred Kirshner, appellant pro se.

Kent T. Stauffer, Asst. U.S. Atty., New York City (Robert B. Fiske, Jr., U.S. Atty., S.D.N.Y., Patrick H. Barth, Asst. U.S. Atty., New York City, of counsel), for appellees U.S., Secretary of the Treasury, Com'r of I.R.S., and Alvin D. Lurie.

Leonard Koerner, New York City (W. Bernard Richland, Corp. Counsel, City of New York, James G. Greilsheimer, L. Kevin Sheridan and Judith A. Levitt, New York City, of counsel), for appellees, Trustees of Teachers Retirement System.

Before MOORE, SMITH and MANSFIELD, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This is an appeal from a judgment dismissing an action brought by a beneficiary of a municipal pension fund against the trustees of the fund and others alleging deprivation of constitutionally protected rights, violations of the federal securities laws, and breach of fiduciary duty under state law, and seeking injunctive, declaratory and other relief. The United States District Court for the Southern District of New York, Lawrence W. Pierce, Judge, held that appellant lacked standing to sue under the federal securities laws, and dismissed the complaint in its entirety, entering judgment accordingly. We find that appellant has standing to sue under the federal securities laws, and reverse the dismissal as to the individuals sued as fund trustees.

For the purpose of this appeal from a judgment granting a motion to dismiss, we treat allegations of the complaint as admitted. Drachman v. Harvey, 453 F.2d 722, 724 (2d Cir. 1972); Murray v. City of Milford, 380 F.2d 468, 470 (2d Cir. 1967).


The facts alleged may be summarized as follows.

Appellant, Alfred Kirshner, was employed as a high school science teacher by the Board of Education of the City of New York from 1928 to 1953. During these years he was obliged to contribute to the Teachers Retirement System of the City of New York ("the System") by means of compulsory payroll deductions credited to the System's annuity savings fund. The City of New York ("the City") was required to pay into the System's contingent reserve fund amounts sufficient to provide for a pension reserve at the time of his retirement. At Kirshner's retirement in 1953, accumulated deductions were transferred on the books of the System to the System's annuity reserve fund and an amount equal to the employee's pension reserve was transferred to the System's pension reserve fund number one. Since then he has received monthly retirement allowances consisting of an annuity and a pension. In 1976 his retirement allowances totaled $3,035.68.

The System is controlled by the Teachers Retirement Board ("the Board"). The Board has the power to purchase securities for and to sell securities held by any of the System's funds. The Board's seven members are trustees for the fund. Three are elected by active employees of the Board of Education. The concurrence of at least one of these three is necessary for any decision of the Board. Retired employees have no representative on the Board.

As of June 30, 1974, about a year before the beginning of the City's financial crisis, the System had $1.85 billion in assets and $4.62 billion in accrued liabilities. Apparently, amounts paid in by the City had not been enough to establish adequate pension reserves. Of the $1.85 billion in assets, $1.62 billion had been transferred into the annuity reserve fund or the pension reserve fund number one or successor funds. The remaining $0.23 billion was held in the annuity savings fund and the contingent reserve fund or their successor funds. Of the $4.62 billion in accrued liabilities, $1.62 billion was owed to reserves for retired employees and $3 billion was owed to reserves for active employees. Thus, there was only $0.23 billion set aside for pensions of active employees although the System had outstanding retirement obligations to these employees of $3 billion. Consequently, when the City's crisis began, the principal concern of retired employees was protecting the integrity of the System's annuity reserve fund and pension reserve fund, or successor funds, while the interests of the Board of Education's active employees lay in assuring that the city had funds to put into the System, so that the employees' retirement allowances could be paid when they became due, and in seeing to it that the City was able to pay their salaries.

In June, 1975 the Legislature of the State of New York instituted the first of several steps in response to the City's financial plight. It established the Municipal Assistance Corporation for the City of New York ("MAC") "to assist the city of New York in providing essential services to its inhabitants . . . and in creating investor confidence in the soundness of the obligations of such city . . . ." 1975 N.Y. Laws, ch. 169 § 3031. MAC was authorized to issue up to $3 billion in notes and bonds. It was to purchase and accept for exchange short-term obligations of the City. On September 9, 1975, the Legislature passed the New York State Financial Emergency Act for the City of New York ("the Emergency Act") which "authorized and directed" certain purchases of MAC bonds and declared these bonds "reasonable, prudent and proper investments for . . . all trustees and other fiduciaries . . . ." 1975 N.Y. Laws, ch. 870 § 14. The System was obliged to purchase bonds in the principal amount of $250 million. On September 29, 1975, however, the Court of Appeals of the State of New York struck down that portion of the Emergency Act which "directed" pension fund trustees to invest in MAC bonds as violative of the constitution of the state. Nevertheless, on October 17, 1975, to enable the City to avoid default, the Board agreed to acquire MAC bonds in the principal amount of $150 million. Concurrence of Board members elected by active employees followed concessions to active employees in contract negotiations between the City and representatives of the active employees. Still the crisis deepened. On November 15, 1975, the City defaulted on its maturing short-term obligations and declared a moratorium on all payments. Between August 21, 1975 and November 20, 1975, the Board purchased MAC bonds in the principal amount of $275 million for the System's funds.

On November 25, 1975 MAC, several commercial banks, and five City pension systems entered into an agreement ("the Agreement") pursuant to which the Board agreed to acquire City serial bonds in the principal amount of at least $860 million over a period of about 30 months. In addition on February 1, 1976 the Board agreed to exchange the MAC bonds held by the System for long-term MAC bonds bearing 6% Interest per year.

The banks, according to the complaint, "while ostensibly acting as disinterested parties, while using their reputations for fiscal integrity and sound business judgment to induce the 'TRUSTEES' to purchase $860 million of NYC serial bonds, failed to make full disclosure of the fact that they had sold over $2 billion of their NYC short term notes in the previous year." The banks "fail(ed) to disclose the extent and dollar value of the City bonds held by them as assets and as trustee and fiduciary for clients, (thereby) concealing material facts that would affect an informed investment decision." It is further alleged that the members of the Board, when entering into the Agreement, "were well aware that buying NYC bonds at that time was wrongful because the City was insolvent. In April 1975 Standard & Poor had completely suspended rating NYC bonds. Moody's had downrated them to unsatisfactory Caa on November 3, 1975. . . . Not one bank, insurance company, investment company, trade union fund or corporation in the USA would at that time advance NYC any funds, but the 'TRUSTEES' volunteered to advance $860 million of the assets of the plaintiff . . . ." Moreover, the Board "accepted the reduced 6% Rate on Moody-rated B (unsatisfactory) MAC bonds at a time when A's were selling with 8% To 9% Returns at par."

The Agreement provided that the System's purchase of City bonds was contingent upon either the issuance of a ruling by the Internal Revenue Service ("IRS") or the enactment of federal legislation providing that the proposed purchases shall not constitute "prohibited transactions" within the meaning of § 503(b) of the Internal Revenue Code of 1954, as amended ("the Code"), or otherwise adversely affect the tax status of the System's pension funds under § 401(a) of the Code.

On December 4, 1975, the Board requested the IRS to rule that certain purchases of City serial bonds would not result in "prohibited transactions" or violate any provisions of § 401(a). However, it is alleged that "in their requests to IRS for approval (the Board) did not make full disclosure in five instances which indicate violations of Security Exchange laws and regulations 10(b) and Rule 10b-5." It did not disclose (1) that the banks had sold City obligations in the previous year; (2) that City serial bonds were to be purchased at par when available at a discount; (3) the purchases would increase fund holdings of City obligations "to 32%"; (4) the Board intended to sell sound corporate bonds to raise cash...

To continue reading

Request your trial
137 cases
  • Berman v. City of N.Y., 09-CV-3017 (ENV) (CLP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 29, 2012 by the [C]ontract [C]lause even though some contract rights may to some degree be modified or affected." Kirshner v. United States, 603 F.2d 234, 239 (2d Cir. 1978). Because the Contract Clause must be "harmonize[d] . . . with a state's police power to protect its citizens," Sal Tinnere......
  • In re Fortune Systems Securities Litigation, C-83-3348A WHO.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 17, 1984
    ...circuits that have found a private right of action under § 17(a) have applied the Cort or Touche Ross factors. See Kirshner v. United States, 603 F.2d 234, 241 (2d Cir.1978); Daniel v. International Brotherhood of International Teamsters, 561 F.2d 1223, 1245 (7th Cir. 1977); Newman v. Prior......
  • Warner Communications, Inc. v. Murdoch, Civ. A. No. 84-13 CMW.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • March 16, 1984
    ...(private right of action exists); Lincoln National Bank v. Herber, 604 F.2d 1038, 1040 n. 2 (7th Cir.1979) (same); Kirshner v. United States, 603 F.2d 234, 241 (2d Cir.1978), cert. denied, 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979) (same); Newman v. Prior, 518 F.2d 97, 99 (4th Cir.1......
  • Glusband v. Fittin Cunningham Lauzon, Inc., 80 Civ. 7387 (JES).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 8, 1984
    ...Act.11 While the Second Circuit has held that a private right of action will lie under section 17(a), see Kirshner v. United States of America, 603 F.2d 234, 241 (2d Cir.1978), it has also held that only purchasers may sue under section 17(a). See, e.g., Adato v. Kagan, 599 F.2d 1111, 1115 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT