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ZUCKER v. SABLE

June 21, 1976

Leo Zucker, on his own behalf and on the behalf of other members of class similarly situated, Plaintiff
v.
Bernard Sable et al., Defendants


Werker, District Judge.


The opinion of the court was delivered by: WERKER

WERKER, District Judge:

Plaintiff suing for himself and on behalf of others similarly situated seeks to recover damages for alleged misstatements and omissions by the defendants in a press release that dealt with the development of soft contact lenses. This court has jurisdiction of the action pursuant to 28 U.S.C. § 1331 and Section 27 of the Securities Exchange Act of 1934. The defendants have moved to dismiss the amended complaint and for judgment on the pleadings.

 The defendants assert that the complaint should be dismissed as insufficient as a matter of law for plaintiff's failure to allege a purchase or sale of securities by the defendant. There has been no showing that the defendants did in fact buy or sell securities. However, section 10b, 15 U.S.C. § 78j(b), is violated where assertions are made in a manner reasonably calculated to influence the investing community if such assertions are false or misleading or are so incomplete as to mislead irrespective of whether the issuance of the release was motivated by corporate officials for ulterior purposes. The term "in connection with" in rule 10b-5 should be construed broadly to include a device that would cause an investor to purchase or sell a corporation's securities. Securities & Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968) (en banc), cert. denied, 394 U.S. 976, 22 L. Ed. 2d 756, 89 S. Ct. 1454 (1969), on remand, 312 F. Supp. 77 (S.D.N.Y. 1970), modified, 446 F.2d 1301 (2d Cir.), cert. denied, 404 U.S. 1005, 92 S. Ct. 561, 30 L. Ed. 2d 558 (1971).

 There is no requirement of contemporaneous trading in securities by insiders or by the corporation itself. Heit v. Weitzen, 402 F.2d 909 (2d Cir. 1968), cert. denied, 395 U.S. 903, 23 L. Ed. 2d 217, 89 S. Ct. 1740 (1969). Since there are allegations that the plaintiff relied on the statements and in reliance did buy shares of Union stock, the purchase/sale requirement has been met.

 The dispute in this action centers on the issuance by the defendants of a press release announcing the filing of an investigational new drug application with the Food and Drug Administration (FDA). Union, the corporate defendant was involved in the development of a water absorbing, plastic material for use in manufacturing soft contact lenses. The plaintiff alleges that it may take as long as several years from the time an investigational new drug application is filed until the product is approved for sale in the public market. The claim upon which this action is based is that the defendants were obligated to include this information in their press release and that the failure to do so resulted in the omission of material information in violation of rule 10b-5. The plaintiff also charges that the defendants failed to correct reports of the press release in various financial journals which omitted the word "investigational" in reporting the announcement by the company. Finally the plaintiff alleges "other actions" by the defendants that were calculated to create a false impression that the defendants were currently involved in the manufacture of soft contact lenses when in fact any entry into that market was several years away.

 The plaintiff seeks recovery for the defendants' failure to include in the press release information concerning the FDA's procedures and processing time for investigational new drug applications. The defendants assert that rule 10b-5 does not impose any obligation to disclose public information which was equally available to the plaintiffs and the defendants. The plaintiff argues that the subject matter of the release is highly technical and is beyond the reach of the ordinary investor.

 This appears to be a case of first impression on this issue. The cases cited to the court are not directly on point. For example, in Hafner v. Forest Laboratories, Inc., 345 F.2d 167 (2d Cir. 1965), a case cited by the defendants, the court held that failure to disclose the market price of certain shares of stock was not a violation of section 10b. In that case, the plaintiff had an agreement with the defendant corporation that the corporation would, upon plaintiff's request, either seek to register the shares which the plaintiff held or would purchase back the shares for $1.75 per share. In connection with the exercise of the option, the plaintiff asked the corporation what was the current market price of the shares which were being traded in the over-the-counter market. The defendant failed to provide the information, but the plaintiff went ahead and sold the shares to the corporation. In a suit for rescission and damages, the plaintiff alleged a section 10b violation by the corporation in failing to disclose the material information, the market price of the shares, which the plaintiff had sought. The court dismissed the complaint and found that where the corporation did not misrepresent the market price and where that information was readily available in the pink sheets, there was no 10b violation.

 Another case relied on by the defendants is Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275 (2d Cir. 1975). In that case, mutual funds purchased from Frigitemp a $1,000,000 convertible subordinated debenture and warrants to purchase common stock without disclosing to the corporation or its principal shareholders that the funds already owned a substantial amount of Frigitemp's publicly owned common stock and that they intended to purchase most of the public float. As a condition of the private placement, the funds had required the principal shareholders to contribute 100,000 shares of their common stock to the capital of the corporation. The court held that there was no obligation to inform the corporation that the companies purchasing the convertible debentures were also shareholders. Furthermore, the court held that there was no duty to disclose information to which the corporation had access. The court also held that a "party charged with failing to disclose market information must be under a duty to disclose it to the plaintiffs." Id. at 282.

 The defendants also rely on Myzel v. Fields, 386 F.2d 718 (8th Cir. 1967), cert. denied, 390 U.S. 951, 19 L. Ed. 2d 1143, 88 S. Ct. 1043 (1968). But the portion of the opinion on which the defendants rely deals with the sale of stock by an insider to another insider. In that context the court held that a 10b-5 action could not be based on the failure to disclose certain inside information which was presumably equally known or available to both parties.

 Johnson v. Wiggs, 443 F.2d 803 (5th Cir. 1971), another case cited by the defendants, is not sufficiently on point to provide support for the defendants' position. In that case, the plaintiff held 59,000 shares of the company's stock and was its second largest shareholder. There was no significant market for the shares and the plaintiff and his financial advisor had been unsuccessful in finding a buyer for the shares. The defendant, the company's president and largest shareholder, had offered to buy the shares several times but the plaintiff had failed to respond. Shortly thereafter the company acquired a controlling interest in another company, a fact which was highly publicized and notice of which was sent to all the shareholders. Nonetheless, the plaintiff continued in his desire to sell his shares and made an offer to the defendant which he accepted. The plaintiff then sued for damages on the ground that the defendant had purchased plaintiff's shares without disclosing certain inside information which made the shares worth more than the plaintiff received. In dismissing the action, the court held that the development of a market in the stock, the current market price, and the corporate acquisition were all facts within the public domain and were not exclusively inside information. Furthermore, the plaintiff was the second largest shareholder and he, along with his financial adviser, had kept abreast of company affairs; thus the defendant was entitled to assume that the plaintiff was aware of this public information and was under no obligation to disclose these facts.

 As the preceding discussion indicates, each of these cases includes an element not present in the case at bar. In some the plaintiff and the defendant were both insiders between whom there was no duty of disclosure; in others, the information was readily available and in the public domain. However, the plaintiff, while refuting the authority presented by the defendants has failed to provide authority for granting the relief sought in this case.

 There are two cases which are helpful in resolving this motion although neither is directly on point. In the first, Kaplan v. Vornado, Inc., 341 F. Supp. 212 (N.D. Ill. 1971), the plaintiff purchased convertible debentures which were redeemable at the company's option. Failure to convert the debentures at the time of the call terminated the holders' right to convert them. The plaintiff bought the debentures on the advice of a broker who told him they were a good investment. The plaintiff did not know anything about debentures, did not investigate them or the company and did not inquire about the terms "redeemable" or "callable" the meanings of which he did not know. The plaintiff had only a vague understanding of the term convertible. The court held that an investor cannot reasonably rest upon his lack of knowledge and denied recovery where the plaintiff failed to read the debenture or to seek information about its important terms from a knowledgeable source.

 The second is Stedman v. Storer, 308 F. Supp. 881 (S.D.N.Y. 1969). In that case a press release was issued regarding a proposed merger. It did include the fact that CAB approval was needed and that it might be a lengthy process, but it omitted certain other information that would have been required at the time proxy material was prepared for obtaining shareholder approval. The press release failed to disclose that the directors who negotiated the merger had not consulted the independent outside director in advance and that the negotiators did not own stock in the corporation they represented. However, the court found no 10b-5 violation. It held that the securities laws do not require that a press release include all the information which must at a later point be included in proxy material. Courts have generally applied a less stringent standard for press releases than for proxy statements and registration statements. "What is a Misleading Statement or Omission Under Rule 10b-5?," 42 Fordham Law Review 243 (1973).

 This court adopts the reasoning of these opinions and concludes that the defendants have not violated rule 10b-5 by issuing the press release of April 26, 1971. The press release issued by the defendants included the word "investigational." The only complaint the plaintiff has is the failure to include an explanation of the term. The plaintiff admits that he was ignorant of the meaning of the term and that he did not know about the time lag between such a filing and the actual availability of the lenses in the public market. As the court held in Kaplan v. Vornado, Inc., supra, this court concludes that the plaintiff here cannot rely ...


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