Nassar & Co., Inc. v. S.E.C., s. 76-1278
| Decision Date | 03 October 1977 |
| Docket Number | Nos. 76-1278,76-1536,s. 76-1278 |
| Citation | 566 F.2d 790 |
| Parties | , Fed. Sec. L. Rep. P 96,185 NASSAR AND COMPANY, INC., et al., Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent. NASSAR AND COMPANY, INC., and George M. Nassar, Appellants, v. SECURITIES AND EXCHANGE COMMISSION et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Carl L. Shipley, Washington, D.C., for petitioners in No. 76-1278 and appellants in No. 76-1536.
David Ferber, Sol., S.E.C., Washington, D.C., with whom Alan Rosenblat, Asst. Gen. Counsel and Howard B. Scherer, Atty., S.E.C., Washington, D.C., were on the brief, for respondent in No. 76-1278 and appellee in No. 76-1536.
Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
Opinion for the Court filed by Chief Judge BAZELON.
Both of these related cases involve an order of the Securities and Exchange Commission, entered February 12, 1976, which revoked the registration of Nassar, Inc. as a broker and dealer in securities, expelled it from membership in the National Association of Securities Dealers, Inc. and barred Mr. Nassar from association with any broker or dealer. 1 No. 76-1278 is before us on a petition to review the Commission's order pursuant to Section 25(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78y(a). 2 In No. 76-1536, Nassar appeals from a district court order dismissing for lack of jurisdiction his action which sought to have the Commission's order declared null and void. Apart from the jurisdictional issue raised by the second case, 3 the issues in the two cases are virtually identical. For the reasons expressed below, we vacate the Commission's order and remand for further consideration.
After a consolidated hearing involving several parties, 4 the administrative law judge found that petitioner and the others had "willfully" violated the antifraud provisions of the securities acts in connection with the sale of stock of Interamerican Ltd. 5 On review, the Commission affirmed the ALJ's finding that petitioner had violated these provisions by his participation in a "massive fraud" designed by Interamerican's promoter, Hausner. Hausner inflated the price of Interamerican stock by spreading the spurious claim that the company was ready to market an effective oral contraceptive whose "sustained release" feature made it suitable for sale in underdeveloped countries. In furtherance of this scheme, Hausner took pains to convince Nassar of the efficacy and potential profitability of this product.
Nassar's allegedly unlawful activities occurred in his efforts to sell Interamerican stock to customers of his brokerage firm. Essentially, the Commission found that Nassar's representations concerning the stock were unduly optimistic, lacked an adequate basis in fact, and were made on the basis of a wholly inadequate investigation. In addition, he was found to have made unwarranted predictions about the price to which the stock might rise. The Commission did not find, however, that Nassar was as culpable as Hausner. Indeed, "(f)or present purposes" the Commission accepted as true Nassar's claim that he himself had been deceived by Hausner's representations and had sustained heavy losses on purchases of Interamerican stock. J.A. 8.
After summarizing Nassar's activities, the Commission found that he had "willfully" violated § 10(b) of the Exchange Act, Commission Rule 10b-5 implementing that section, and § 17(a) of the Securities Act. However, the Commission did not explain which activities violated which provision, or whether all of the activities violated both acts. Moreover, the Commission made no findings regarding Nassar's scienter; indeed, the order contains no discussion of the mental state required to make out violations of these provisions. The Commission did refer to Nassar's violation as being "willful" and his price quotations as being "reckless," J.A. 16, but it failed to explain if it was using these terms in a technical or a descriptive sense. Similarly, the reasons for affirming the suspension of Nassar were not explained in detail, the Commission merely noting:
(W)e are unable to take a sanguine view as to the prospect of Nassar's future honesty. To permit one so prone to irrational euphoria and blatant exaggeration to continue to meddle with other people's money would be contrary to the public interest. J.A. 22.
These cases ensued. While review was pending, the Supreme Court issued its decision in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). The Court held that a private action for damages will not lie under § 10(b) of the Exchange Act and Commission Rule 10b-5 in the absence of any allegation of "scienter," which it referred to as intent to deceive, manipulate or defraud. 425 U.S. at 193, 96 S.Ct. 1375.
The only substantive issue presented is whether, after Hochfelder, some form of scienter must be established in an administrative enforcement proceeding under § 10(b) and Rule 10b-5 as well as in a private action. 6 Another panel of this court recently addressed this question and concluded that it should be resolved in the first instance by the Commission itself:
The applicability of the Hochfelder decision to enforcement actions brought by the SEC is a question that has not been decided by this court. In addition, we have before us only the views of the attorneys representing the Commission, and not the Commission itself, as to the applicability of the Hochfelder scienter requirement in actions of this type. We emphasize that we intimate no view as to the applicability of the Hochfelder scienter requirement to this case. We hold only that the actions of the petitioners must be re-evaluated in light of significant Supreme Court precedents 7 rendered since petitioners' case was decided by the Commission.
Collins Securities Corp. v. SEC, --- U.S.App.D.C. ---, at ---, 562 F.2d 820, at 827 (1977). In deference to Collins Securities, therefore, we also remand this case to the Commission for reconsideration in light of Hochfelder.
The Commission attempts to distinguish Hochfelder on the ground that the case under review involves a violation of § 17(a). In Hochfelder, the Court recognized that on its face Rule 10b-5 covered behavior in which scienter was absent. Since the language of § 17(a) is virtually the same as that of Rule 10b-5, 8 the Commission reasons that an action under § 17(a) will lie even in the absence of an allegation of scienter. Hence, the Commission regards § 17(a) as adequate support for its order. However, the Commission's order neither indicates which behavior violated § 17(a) nor whether violations of § 17(a) alone would have sufficed to support Nassar's suspension. Although on remand the Commission may rest on § 17(a) alone, "(the) administrative order (now under review) can be affirmed on appeal only on the grounds on which the Commission relied." KIRO v. FCC, 178 U.S.App.D.C. 126, 130, 545 F.2d 204, 208 (1976). Because the Commission's discussion of § 17(a) is not separate from its discussion of § 10(b), we cannot affirm its result on the basis of § 17(a) alone.
We vacate the Commission's order and remand the case to the Commission for reconsideration in light of this opinion and such further proceedings, if any, it deems appropriate. In connection with the remand, we note that Nassar maintains that the sanction ordered by the Commission is overly severe and hence arbitrary. We need not reach this issue at this time, since on remand the Commission may find no violation or may decide to impose a lesser sanction. However, should the Commission seek to reinstate this penalty it should articulate its reasons for doing so with greater particularity. The discussion in the order is simply too brief to enable this court to determine if the sanction ordered was based on a consideration of all the relevant factors and is in accord with Commission precedent.
The order of the district court in No. 76-1536 is affirmed. The petition for review in No. 76-1278 is granted and that case is remanded to the Commission for further consideration not inconsistent with this opinion.
The SEC decision revoking Nassar's registration issued prior to Ernst. 1 This court remands for reconsideration in the light of Ernst. I agree.
The pertinent consideration is not unrelated to the ruling in Collins Securities Corp. v. SEC, No. 75-2200, --- U.S.App.D.C. ---, 562 F.2d 820 (1977), that an order revoking such registration must be based on "clear and convincing evidence." While that question is not involved in this case, 2 it identifies the care needed as a condition for revocation.
Even assuming that a scienter is needed for revocation of registration, that does not mean that what is required is the kind of subjective deceit that Ernst held to be required in an action for damages. As the Commission points out, a broker-dealer may be guilty of intentional misconduct if he deliberately commits certain acts even if he doesn't know they are forbidden by the Act or regulations. In other words, there is no requirement of specific intent that includes a specific element of knowledge of the pertinent rule of law. 3 A broker-dealer is under an obligation to learn the rule of law.
A difficult question is raised by the statement in the Commission's opinion that Nassar was engaged in grossly reckless conduct 4 and in failure to do any reasonable checking of assertions made to him by Hausner (J.A. 120).
Hanly v. SEC, 415 F.2d 589 (2d Cir. 1969), develops that standards for a securities dealer are strict, because, inter alia, "he implicitly represents that he has an adequate basis for the opinion he renders" and "(b)y his recommendation he implies that a reasonable investigation has been made . . . ." Id. at...
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