The opinion of the court was delivered by: LASKER
Henry Morgan's "amended and supplemental" complaint alleges violations of Sections 10(b) and 14(e)
/ of the Securities and Exchange Act of 1934 (15 U.S.C.§§ 78j(b) and 78n(e)) and Securities and Exchange Commission Rule 10b-5 (17 C.F.R. § 240.10b-5). Several of the defendants
/ move to dismiss the complaint on the grounds that, as to them, it fails to state a claim upon which relief can be granted.
/ Rule 12(b)(6), Federal Rules of Civil Procedure. For the reasons stated below, the motions are granted, and on our own motion, the complaint is dismissed.
In May, 1972, Morgan invested $30,000. in an oil and gas exploration fund and thereby became a limited partner in the Plaza One Development Fund, which was one of a number of programs collectively referred to as the 1972 Programs.
/ Participation in the 1972 Programs was offered to the public by Prudential Ventures Corporation ("Ventures"), a wholly owned subsidiary of Prudential Funds, Inc. ("Prudential").
/ What Ventures was offering was claimed to be an attractive tax shelter opportunity; its features were described in a variety of "selling documents": registration statements, prospectuses and other pieces of sales literature. Although the selling documents are not specifically identified, Morgan alleges that he bought his share on the strength of a prospectus entitled "Units of Limited Partnership Interests in Resource Ventures Development Fund." This is the only publication that he alleges having seen in connection with his purchase.
The uniqueness of the 1972 Programs lay in their financial structure, two features of which assured tax treatment of a sort not to be found in competing tax shelter programs based on oil and gas ventures. First, the selling documents proclaimed that the actual drilling and explorations would be financed by non-recourse loans and that the loans would be secured by oil and gas reserves that had been proven and developed. Use of proven reserves as collateral ("back end leveraging") permitted each investor to incorporate the loans into his or her cost basis. The stepped up cost basis would have been unavailable if the 1972 Programs had collaterized the loans with unproven, undeveloped oil and gas reserves ("front end leveraging"). Front end leveraging was mentioned and criticized in the Prudential selling documents. Second, the 1972 Programs were committed to use the borrowed funds to prepay "intangible drilling and development expenses." The irrevocable allocation of borrowed funds to those specific expenses allowed investors to claim deductions in the year of prepayment, rather than in the year that the expenses actually materialized.
Phase I of the Fraud - The First Claim for Relief
After all the partnership interests had been sold, the mechanics of the 1972 Programs were set in motion. This occurred in the fall of 1972, after Morgan had purchased his interest. The first step in the actualization of the exploration/development program was the drafting of a model contract. The contract, which was to govern the relations between Prudential and whatever drilling companies were to be hired to perform the actual field work, contained, among other items, the terms of loan agreements and the details concerning use of borrowed funds. When, in October, 1972, it came time to draft the model contract, the Prudential Defendants had not established proven oil and gas reserves sufficient for the back end leveraging that had been described in the selling documents. The October developments were, according to the complaint, the first sign that the anticipated financial structure would be unavailable. There is no allegation that at the time the selling documents were circulated, the Prudential Defendants knew or recklessly failed to discover that they would lack the reserves required for the promised form of financing.
/ The model contract that was drafted, with the assistance of defendants Bartling and Forman & Dyess, contained provisions calling for front end leveraging, the very method that had been disparaged by the selling documents. In November, Prudential circulated the draft model contract to Caplin & Drysdale and Palmer, Serles. These law firms advised Prudential that the scheme contemplated by the model contracts as drafted did not conform to what had been described in the selling documents. Prudential was warned that the Caplin & Drysdale tax opinion letters, which had been the basis of the tax information contained in the prospectus, did not cover the system laid out in the model contract. Prudential was further alerted that implementation of the draft contract might, in light of the representations made in the selling documents, create securities laws problems.
Reform was urged. In late November, responding to the criticism of the law firms, Prudential agreed to change the model contract and bring it into conformity with the selling documents. Prudential's acquiesence was a sham, for at the time it agreed to make the changes in the model contract, it intended to employ front end leveraging, no matter what the terms of the revised contract might indicate. This is the first allegation of fraud (P15, Complaint).
A revised contract appeared in early December. It called for a three phase drilling program, in which reserves developed in the first phase would be used to collateralize loans needed to finance the subsequent phases. The December contract had the potential of fulfilling the descriptions contained in the selling documents. However, by mid-December, "none of the prospects [explored in the first phase of drilling] had been developed sufficiently to provide collateral for loans to finance subsequent drilling phases." With the year nearly over, the promise of back end leveraging disappeared. In the final days of December, 1972, the Prudential Defendants, "aided and abetted by defendants Bartling and Bartling & Associates," concocted an elaborate scheme to conceal their failure to live up to their earlier promises. There is no need for detailed description of the scheme. In short, a series of complicated loan transactions, involving Prudential, Bartling, the Operator defendants, and the Bank defendants, was consummated. The important feature of these transactions was that they deviated from what had been contemplated by the selling documents. The transactions were not "nonrecourse loans collateralized by established reserves and committed to intangible oil and drilling expenses," they were "bogus transactions," in which Prudential borrowed from the Banks, delivered the proceeds to the Operator defendants and then had the Operator defendants purchase certificates of deposits from the Banks. It is claimed that the "Bank Defendants, the Operator Defendants, the Prudential Defendants, defendants Willey, Bartling and Bartling & Associates knew or should have known that the bogus loan transactions were part of a plan and scheme to defraud the class." (P23, Complaint)
Phase II of the Fraud - The Second Claim for Relief
Following the "bogus" transactions, a number of individual and corporate defendants are alleged to have "engaged in a conspiracy to conceal, cover up the fraudulent activities engaged in by the Prudential defendants, thereby aiding and abetting the continuation of such activities." (P43, Complaint) The gist of the conspiracy is that the aider-abettor defendants discovered a variety of material details and their failure to disclose rendered them culpable.
For all but the Prudential Defendants, liability for the federal violations, alleged in the first and second claims for relief,
/ is based on a theory of aiding and abetting. This theoretical groundwork is explicit in the complaint (PP21, 25, 43) as well as in Morgan's legal memoranda in opposition to defendants' motions to dismiss. In particular, the first claim alleges aid in the form of "bogus transactions." The second claim for relief alleges aid in the form of a cover-up that started in early 1973 and continued through the fall of that year. The principal, underlying fraud to which the bogus transactions and cover-up are said to be connected is the misrepresentation (through the use of false and misleading selling documents) that was perpetrated by the Prudential Defendants prior to Morgan's May, 1972 purchase.
An aider or abettor may be held liable under Rule 10b-5, Rolf v. Blyth, Eastman Dillon & Co., Inc., 570 F.2d 38, slip op. at 897 (2d Cir. 1978) and cases cited therein. However, violation of the securities laws by the primary party (here, the Prudential Defendants) is of course a prerequisite to the liability of an alleged aider or abettor. Rolf v. Blyth, Eastman Dillon & Co., supra, slip op. at 902-03, and cases cited; Rosen v. Dick, [1974-75] C.C.H. Fed. Sec. L. Rep. P94,786 at 96, 604 (S.D.N.Y. 1974); In re Equity Funding Corporation of America Litigation, 416 F. Supp. 161, 179, 180 (C.D. Cal. 1976). Morgan's "amended and supplemental" complaint does not contain an allegation of primary fraud.Although it alleges that the representations in the selling documents ultimately proved to be false (the promised back end leveraging never materialized), it is not claimed that the Prudential Defendants knew or recklessly failed to discover that their promises were false at the time they made them. The absence of a scienter allegation destroys the claim of principal fraud, Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 47 L. Ed. 2d 668, 96 S. Ct. 1375 (1976), and so, undermines a basis for the imposition of secondary, aiding-abetting liability.
The failure properly to allege scienter in the allegation of primary fraud compels dismissal of the complaint.
/ However, further discussion of the potential liability of the claimed post-purchase aider/abettors is appropriate in light of the fact that, as is apparent both from his legal memoranda and from ...