Mercury Investment Co. v. AG Edwards & Sons
Decision Date | 27 January 1969 |
Docket Number | Civ. A. No. 67-H-853. |
Citation | 295 F. Supp. 1160 |
Parties | MERCURY INVESTMENT CO. v. A. G. EDWARDS & SONS and A. B. Alkek, Jr. |
Court | U.S. District Court — Southern District of Texas |
Frank Pinedo, Houston, Tex., for plaintiff.
Ben G. Sewell, Houston, Tex., for defendant A. G. Edwards & Sons.
R. F. Wheless, Jr., Barrow, Bland & Rehmet, Houston, Tex., for defendant A. B. Alkek, Jr.
Plaintiff, a customer of A. G. Edwards & Sons (hereinafter referred to as "Edwards"), a brokerage firm dealing in securities, has brought this action against that firm and A. B. Alkek, Jr., its employee, to recover damages for alleged violations of Section 10(b) of the Securities Exchange Act of 1934 (15 U. S.C. § 78j(b)); Securities Exchange Commission Rule 10b-5 (17 C.F.R. 240.10b-5); Art. III, sec. 2 of the Rules of the National Association of Securities Dealers (N.A.S.D.); Section 33 of the Texas Securities Act; Art. 4004 Texas Revised Civil Statutes and the common law of the State of Texas.
The case is now before the Court on defendant Edwards' motion to dismiss certain portions of plaintiff's complaint for failure to state a claim upon which relief can be granted. Defendant seeks the dismissal of that part of plaintiff's complaint which is predicated on a violation of Section 2, Article III, of the Rules of Fair Practice of N.A.S.D. Defendant contends that the allegation of a violation of an N.A.S.D. rule by an N. A.S.D. member does not state a federal claim upon which relief can be granted. The N.A.S.D. is a private securities dealers association which enforces rules which it promulgates through disciplinary proceedings. Thus, contends defendant, citing Colonial Realty Corp. v. Bache & Co., 358 F.2d 178 (2d Cir. 1966), a violation of such a dealer association rule by a member does not give rise to an implied federal civil liability.
If the problem confronting the Court were as simple as defendant contends, there would be little need for this opinion. A reference to the Colonial case would be sufficient. However, Colonial ( does not lend weight to the simplistic approach urged by )defendant. Colonial dealt with one particular rule of the dealer's association and held that it did not give rise to federal civil liability. A different rule is involved in this case.
Colonial did not issue a blanket holding that such dealer rules could never give rise to federal civil liability. It did attempt to establish certain criteria for determining whether a particular rule gives rise to such liability.
The Court in Colonial said:
The N.A.S.D. rule in question in the present case is the so-called "suitability" rule. (Art. III, Sec. 2). It provides as follows:
"In recommending to a customer the purchase, sale or exchange of any security, a member shall have reasonable ground for believing that the recommendation is suitable for such customer upon the basis of the facts, if any, disclosed by such customer as to his other security holdings and as to his financial situation and needs."
Plaintiff contends that since this rule "imposes an explicit duty unknown to the common law" it meets the Colonial criteria. Plaintiff fails to recognize that initially Colonial requires the Court to determine if the N.A.S.D. rule is consistent with the federal regulatory scheme. See Hecht v. Harris, Upham & Co., 283 F.Supp. 417, 430 (N.D.Cal. 1968).
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