The opinion of the court was delivered by: MOTLEY
These actions, consolidated for trial, were commenced in 1966 and are brought on behalf of purchasers of a $75 million dollar issue of 4 3/4% convertible subordinated debentures due July 1, 1991. The debentures were sold pursuant to a registration statement and prospectus filed with the Securities and Exchange Commission and which became effective July 12, 1966. (Pl. Exch. 28).
The debentures were convertible into capital stock at $80 per share, subject to adjustment, and were subordinated to the payment of all other debt. Plaintiffs claim that the prospectus was filed in violation of Section 11 of the Securities Act of 1933, as amended. 15 U.S.C., § 77k. That section provides a cause of action for persons who have purchased securities pursuant to a registration statement and prospectus which contained ". . . an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading" and who at the time of purchase did not know of the untruth or omission. The court directed that the trial of these Section 11 claims would be bifurcated. The first part of the trial would adjudicate questions concerning the nature of the representations in the challenged prospectus, whether these representations contained untrue statements or omissions and whether any such untrue statements or omissions were material. The first phase of the trial was completed on October 25, 1973.
Douglas was incorporated in Delaware in 1928. At the time of the prospectus its corporate offices were located in Santa Monica, California. Douglas was an aerospace manufacturer engaged in the manufacture of aircraft and related activities. It was a major participant in the Government's missile and space programs and one of the principal manufacturers of jet aircraft for commercial and military use. Douglas was organized into two primary groups: the Missiles and Space Systems Group and the Aircraft Group. (Pls' Exh. 28, p. 3). In April, 1967, following a financial debacle in November 1966, Douglas merged with McDonnell Company, now known as McDonnell-Douglas.
Despite a pre-tax loss of $7,517,000 and a net loss of $3,463,000 for the three months ended May 31, 1966, Douglas had a net income of $645,000 for the period November 30, 1965 through May 31, 1966, that is, the first half of fiscal 1966. However, by November 1966, the end of fiscal 1966, Douglas had sustained a net loss of $52 million. This loss was attributable to the Aircraft Division's pre-tax loss of approximately $77.0 million. The Aircraft Division's catastrophic losses were, in turn, caused by the confluence of two factors: 1) unusually long delays in the delivery of parts, particularly engines, required for the DC-8 and DC-9 aircraft and 2) the escalating costs involved in recruiting and training thousands of new, inexperienced employees who replaced skilled or recently trained Douglas workers who had been either drafted or left for other jobs in a highly fluid labor market. The severe parts shortage, and the high rate of turnover of skilled employees were caused, in turn, by the vagaries of the Vietnam War. (See Pls' Exh. 12, App. C, pp. 3-4;
Pls' Exh. 28, pp. 5-6; Oct. 9, 1973, pp. 300-315). Delays in parts deliveries by suppliers and the shortage of skilled workers caused serious disruptions to Douglas' production operations, resulting in vastly increased production costs. (Pls' Exh. 28, p. 23). These problems had begun to affect the Aircraft Division's operations in the early part of fiscal 1966. However, the parts shortages intensified during the second half of fiscal 1966. For instance, beginning in late July 1966, engine deliveries declined sharply. (Tr., Oct. 10, 1973, p. 610. See also Def's Exh. 711, p. 5). Moreover, in the middle or late summer of 1966, Douglas learned that the Defense Department was ordering a large supply of bomb racks from Douglas. (Tr. Oct. 24, 1973, pp. 1874-75; Def's Exh. 716B, p. 8). This order, to which Douglas had to give priority, worsened Douglas' manpower and parts shortages problems.
Plaintiffs claim that the prospectus contained material misrepresentations as follows:
1) The projected income statement in the prospectus that ". . . it is very likely that net income, if any, for fiscal 1966 will be nominal," (Pls' Exh. 28, p. 6) was, according to plaintiffs, a prediction that Douglas would break even and, as such, was a material misrepresentation of Douglas' prospects. In this connection plaintiffs argue that the prospectus falsely assured investors that Douglas would not have to correct the problems cited above and delineated in the prospectus in order to break even for fiscal 1966. Plaintiffs further argue that Douglas should have disclosed a) the assumptions underlying the forecast, and b) that previous forecasts in 1966 had failed in order to make the statement regarding profits, if any, not misleading.
2) Douglas' statement of the use to which it would put the net proceeds of the bond issue (Pls' Exh. 28, p. 3) did not accurately state the company's plans for the proceeds. Plaintiffs say Douglas used all proceeds to pay off short term bank loans but misrepresented that only a portion of the proceeds would be used to cancel these loans.
Plaintiffs also claim that failure to disclose Douglas' pre-tax loss of $7,517,000 was a material omission.
In order to prove a violation of Section 11, it is not enough to prove untrue statements, misrepresentations or omissions. An untrue statement or a misrepresentation or omission must be material in order to be actionable under Section 11. And the test of materiality is whether ". . . a reasonable investor might have considered . . . [the information] important in the making of . . . [his] decision." Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 31 L. Ed. 2d 741, 92 S. Ct. 1456 (1972). See also Escott v. Barchris Construction Corp., 283 F. Supp. 643 (S.D.N.Y. 1968) (McLean, J.). As the Second Circuit has said:
The basic test of materiality . . . is whether a reasonable man would attach importance . . . in determining his choice of action in the transaction in question . . . . [Citations omitted] This, of course, encompasses any fact . . . which in reasonable and objective contemplation might affect the value of the corporation's stock or securities . . .
SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968), cert. denied, 394 U.S. 976, 89 S. Ct. 1454, 22 L. Ed. 2d 756 (1969). Scienter is not an element of a Section 11 action. 3 L. Loss, Securities Regulation 1729-30 (2d ed. 1961). See also Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 786 (2d Cir. 1951).
Moreover, the "due diligence" defense is not available to this defendant. That defense permits persons other than issuers to escape liability if they can show that, after reasonable investigation, they had reasonable grounds to believe and did believe that the prospectus was true and did not contain any material misrepresentations or omissions. 15 U.S.C. § 77k.
With these basic legal principles in mind, and as the remainder of this opinion demonstrates, the court considered each of plaintiffs' claims to determine whether they have sustained their burden of proving with respect to each claim an untrue statement or omission or misrepresentation as well as materiality.
As to the first claim, the court finds and concludes herein that the statement concerning income, if any, was false in that, viewed as a prediction of break even (i.e., a little profit or a little loss) it was not highly probable that the company would break even and the statement was misleading in that it omitted to state facts necessary in order to make that prediction not misleading. It was manifestly material since it represented top management's assessment of the company's prospects despite omnipresent adversity.
The court also finds that plaintiffs satisfied their burden of proof with respect to their claims that the statement as to the use of proceeds was a material misrepresentation and failure to disclose the pre-tax loss of $7,517,000 was a material omission.
The plaintiffs' claims are examined below and the court makes the following findings as to each.
1. " While it is not possible to determine when these factors will be corrected, it is expected that they will continue to affect the results of operations for the balance of fiscal 1966. Therefore, it is very likely that net income, if any, for fiscal 1966 will be nominal." (Pls' Exh. 28, p. 6).
Plaintiffs claim that this statement amounted to a forecast that defendant would break even in fiscal 1966 and that this is the way a reasonably prudent investor would have read the statement. Defendant claims that the statement was intended as a warning that profits, if any, for 1966 would be nominal. Moreover, says Douglas, while it did not intend to predict that it would break even in fiscal 1966, its management reasonably believed that it would incur only nominal losses. Its expectation of nominal losses were based on its in house prediction that the Aircraft Division would have a pre-tax loss of $27.8 million and that the company would have a net loss of $519,000 for the fiscal year.
The parties have stipulated that it was not illegal for defendant to make a prediction of future earnings in its prospectus.
The threshold question, therefore, is whether the statement would have been interpreted by a reasonable investor merely as a warning that more than nominal profits were unlikely for fiscal 1966, as defendant has argued,
or as a forecast that the company would not suffer any substantial losses, as plaintiffs contend.
The statement, of course, literally speaks only of the improbability of substantial earnings and not of the improbability of substantial losses. "However, a statement which is literally true, if susceptible to quite another interpretation by the reasonable investor . . . may properly . . . be considered a material misrepresentation." SEC v. First American Bank and Trust Co., 481 F.2d 673 (8th Cir. 1973). See also 3 L. Loss, Securities Regulation, 1431-35 (2d ed. 1961).
Put another way, the test is whether it is likely that an appreciable number of ordinarily prudent investors would have read the statement as a forecast that substantial losses were improbable. Cf. Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 542 (2d Cir. 1956).
The court finds that it is likely that an appreciable number of ordinarily prudent investors would have so read the passage and that such a reading was likely despite the various admonitions in the prospectus. (See Pls' Exh. 28 at pp. 8, 9, 14-16, 18, 20, 22-23, 23-24).
First, while the canon of construction " expressio unius est exclusio alterius " is not infallible, reasonable investors could have concluded that the company's failure to mention the likelihood of substantial losses together with its reference to the improbability of substantial profits was meant to exclude the likelihood of substantial losses.
Second, the enumeration of conditions which might cause reasonable investors to be uncertain about the company's earnings prospects would not necessarily cause reasonably prudent investors to discard the possibility that the company intended to make a break-even forecast. In view of the company's net income of $14,598,000 for fiscal 1965 (Pls' Exh. 28, p. 4), reasonably prudent investors might have concluded that, even if the unfavorable conditions cited throughout the prospectus caused a substantial decline in Douglas' earnings, nevertheless the company considered any substantial losses improbable for fiscal 1966.
Defendant now concedes that reasonable investors ". . . would have the impression that Douglas was not expecting any great loss," (Tr., Oct. 19, 1973, pp. 1660-61) and that the statement ". . . accurately [described] the Company's second 1966 quarter internal financial expectations for the year 1966: [the] possibility of a slight profit or a slight loss." (Defendant's Proposed Findings of Fact P81 (e).) Moreover, Mr. Douglas testified that he intended that the statement would suggest that "[there] might be a small loss and there might be a small gain". (Tr., Oct. 9, 1973, p. 393). One of defendant's witnesses, Dean Woodman, a vice president of Merrill, Lynch, Pierce, Fenner & Smith, testified that he understood the language to mean that any losses would be nominal. (Tr., Oct. 12, 1973, p. 866). The court finds that a net loss of more than $5,000,000 or $1.00 per share for fiscal 1966 would be substantial, (Tr., Oct. 12, 1973, p. 858) so that a reasonably prudent investor, aware of the possibility of such a loss, might have been deterred from purchasing the debentures.