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Diskin v. Lomasney & Co.

decided: December 13, 1971.


Friendly, Chief Judge, Feinberg, Circuit Judge, and Davis, Associate Judge.*fn**

Author: Friendly

FRIENDLY, Chief Judge:

During the summer of 1968 plaintiff Diskin had conversations with defendant Lomasney, general partner of defendant Lomasney & Co., a broker-dealer, with respect to securities of two companies, Ski Park City West, S.I. and Continental Travel, Ltd. Lomasney & Co. had agreed to sell up to 60,000 common shares of the former on a "best efforts" basis and was the principal underwriter for the sale of 350,000 common shares of the latter. A preliminary registration statement with respect to the shares of Continental Travel had been filed with the Securities and Exchange Commission on August 28, 1968, but did not become effective until February 11, 1969. On September 17, 1968, Lomasney sent Diskin a final prospectus for the Ski Park City West, S.I., stock, along with a letter, the body of which read as follows:

I am enclosing herewith, a copy of the Prospectus on SKI PARK CITY WEST. This letter will also assure you that if you take 1,000 shares of SKI PARK CITY WEST at the issue price, we will commit to you the sale at the public offering price when, as and if issued, 5,000 shares of CONTINENTAL TRAVEL, LTD.

On the same day Diskin placed an order for the 1,000 shares of Ski Park City West and received a written confirmation. He later paid for these, and the validity of their offer and sale is unquestioned.

On February 12, 1969, Lomasney sent Diskin a confirmation of the sale of 5,000 shares of Continental Travel at $12 per share, apparently without any further communication. Diskin received from Lomasney a final prospectus and registration statement for these shares prior to February 28, 1969, when he paid the bill of $60,000, and received delivery. On November 19, 1969, Diskin demanded rescission. Having received no answer, he brought this action in the District Court for the Southern District of New York on January 6, 1970, claiming that the letter of September 17, 1968, insofar as it related to shares of Continental Travel, was a violation of § 5(b) (1) of the Securities Act of 1933.*fn1 This provision makes it unlawful for any person

to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to carry or transmit any prospectus relating to any security with respect to which a registration statement has been filed under this subchapter, unless such prospectus meets the requirements of section 77j.

Section 2(10), so far as here pertinent, defines "prospectus" as

any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security; . . . .

Section 12(1) provides that any person who offers or sells a security in violation of section 5

shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.

The parties submitted agreed findings of fact and stipulated that the case should be decided thereon. The district judge dismissed the complaint on a ground not raised in the memorandum of law filed by the defendants. This was that the portion of the September 17 letter relating to the Continental Travel shares came within the exclusion set forth in the last sentence of § 2(3) of the Securities Act, providing:

The issue or transfer of a right or privilege, when originally issued or transferred with a security, giving the holder of such security the right to convert such security into another security of the same issuer or of another person, or giving a right to subscribe to another security of the same issuer or of another person, which right cannot be exercised until some future date, shall not be deemed to be an offer or sale of such other security; but the issue or transfer of such other security upon the exercise of such right of conversion or subscription shall be deemed a sale of such other security.

We think the judge misapplied the last sentence of § 2(3). Although the reasons for the quoted exclusion are somewhat obscure and its administration has given rise to difficulties, see I Loss, Securities Regulation 299-300 (2d ed. 1961); IV Loss, Securities Regulation 2348-49 (Supp.1969), Congress could not have meant it to cover a letter sent by a dealer coupling the sale of a security which had been registered or the registration of which was not required for a valid offer or sale (e.g., because of § 4(3)), with an otherwise prohibited proffer of another security. Even if a completely literal reading would lead to that conclusion, which we rather doubt, "there is no surer way to misread any document than to read it literally." Guiseppi v. Walling, 144 F.2d 608, 624 (2 Cir. 1944) (concurring opinion of L. Hand, J.), aff'd sub nom. Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S. Ct. 605, 89 L. Ed. 921 (1945). See also Cabell v. Markham, 148 F.2d 737, 739 (2 Cir.), aff'd, 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 165 (1945). Manifestly, Congress did not intend that a sale of a few shares of a registered security or in a transaction exempted by § 4 should enable a dealer to offer the purchaser the "right to subscribe" to thousands of shares of some gamy unregistered issue without conforming with the requirements of the statute -- thereby opening not a mere hole but a large ...

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