The opinion of the court was delivered by: OWEN
The five consolidated actions before me
have their common origin in (1) the tender offer made by Universal Food Specialties, Inc. ("UFS"), a wholly-owned subsidiary of Nestle Alimentana, S.A. ("Nestle"), pursuant to a written offer to purchase dated May 29, 1975, to acquire all of the outstanding common stock of Libby, McNeil & Libby ("Libby") and all of the outstanding Libby 5% Convertible Debentures due January 15, 1989 ("debentures"), and (2) the subsequent "short-form" merger, effective April 6, 1976, of Libby into UFS.
The complaint alleges, inter alia, that Nestle, UFS, Libby, the Nestle Company, Inc. ("American Nestle"), Unilac, Inc. ("Unilac"), a Panamanian holding company owned by Nestle, Inveslac, Inc. ("Inveslac"), a wholly owned subsidiary of Unilac, Lehman Brothers, Inc. ("Lehman"), and the Libby directors ("individual defendants") conspired to defraud plaintiffs in connection with the UFS tender offer and the merger of Libby into UFS in violation of §§ 10(b), 13(d), 14(e) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78m(d), 78n(e), 78t(a), as amended, and the rules promulgated thereunder, and the common law. Before me are several motions addressed to the pleadings: (1) defendants Nestle, UFS, and American Nestle (the "Nestle defendants"), Libby and the Libby directors (the "Libby defendants"), and Lehman move to dismiss the complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment, pursuant to Fed. R. Civ. P. 56, and (2) American Nestle, the Libby defendants, and Lehman alternatively move to dismiss the complaint for failure to plead fraud with specificity, pursuant to Fed. R. Civ. P. 9(b). The threshold issue presented by defendants' motions is whether the complaint should be dismissed under Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 97 S. Ct. 1292, 51 L. Ed. 2d 480 (1977), in which the Supreme Court held that "Congress by § 10(b) did not seek to regulate transactions which constitute no more than internal corporate mismanagement." 430 U.S. at 479, 97 S. Ct. at 1304.
The relevant facts can be summarized as follows. In 1960 and 1963, Nestle made its first open market purchases of Libby common stock, giving it approximately 9% of the outstanding Libby common stock. Sometime in 1963, Nestle entered into a voting trust agreement with two groups of foreign investors, Fasco A.G. and the Paribas Corporation, which had previously acquired a total of 20% of the Libby common stock through a tender offer. The agreement provided that upon Nestle's acquisition of a 20% interest in Libby, the Nestle, Paribas, and Fasco interests would nominate representatives of the trust to positions on the Libby Board of Directors. This voting trust arrangement lasted until 1967, at which time Nestle acquired the interests of the other groups.
That stock acquisition gave Nestle a total of 36% of the Libby common stock, and four of the eleven positions on the Libby Board of Directors were filled with Nestle nominees.
During 1969, Nestle dramatically increased its financial commitment to Libby, which up to that point had been only an equity interest, by extending a $ 10.5 million, unsecured, one-year loan at an interest rate of 9 1/2%. At the same time, Libby arranged for $ 100 million revolving credit loan from a bank syndicate to cover the period from September 10, 1969 to May 29, 1970. In May of 1970, the banks allegedly insisted, as a condition for the renewal of the credit line, that Nestle's $ 10.5 million loan be renewed for an additional 15 months and subordinated to the bank loans or that the loan principal be converted into an equity interest. In March 1970, Nestle agreed to extend and subordinate its loan, and the banks thereafter renewed their revolving credit agreement with Libby. On October 28, 1970, for reasons that are in sharp dispute, Libby announced that its Board of Directors and shareholders had authorized a subscription offer, pursuant to which each shareholder was offered the right to purchase one additional share for each Libby share owned by them and certain oversubscription rights to purchase shares not bought by others (the "subscription offer"). The prospectus accompanying the subscription offer, as well as Nestle's report to the Securities Exchange Committee ("SEC") pursuant to Rule 13D, 17 C.F.R. 240.13d-1 ("Schedule 13D"), revealed that Nestle intended to acquire a majority interest in Libby through purchases made under the terms of the subscription offer. In fact, Nestle's acquisition of 3,010,454 additional Libby shares provided it with a 51.6% ownership interest in Libby.
Between 1970 and 1974, Nestle purchased additional Libby shares on the open market.
During this time, the Federal Trade Commission ("FTC") was investigating whether, given Nestle's substantial equity interest in Libby, Nestle had run afoul of the antitrust laws with its March 1973 acquisition of another food industry enterprise, the Stouffer Corporation. In late 1973, faced with the prospect of an FTC order to divest itself of its Libby holdings, Nestle began considering the financial implications of alternative methods of divestment including the elimination of Libby's minority shareholders and the subsequent sale of Libby as a going concern. Finally, on May 29, 1975, after consultations with Lehman, its investment advisor, and an Advisory Committee composed of certain Nestle appointees to the Libby Board of Directors, Nestle caused UFS, to whom Nestle had transferred its 65% interest in Libby, to make an Offer to Purchase all of the outstanding Libby common stock and Libby's 5% convertible subordinated debentures due January 15, 1979. Under the terms of the offer, UFS agreed to pay $ 8 1/8 in cash for each share of common stock tendered
and $ 700 per $ 1000 principal amount for each debenture tendered.
The UFS offer to purchase stated that if UFS, as a result of the tender offer, exceeded 90% stock ownership, Libby would be merged into UFS. Pursuant to the tender offer, UFS acquired 2,966,869 shares of Libby common stock; UFS also purchased $ 11,908,000 in principal amount of the Libby debentures, amounting to 79% of the outstanding indebtedness.
On February 26, 1976, consistent with its representations in the Offer to Purchase, UFS notified the Libby shareholders and debentureholders that, pursuant to the Maine and Delaware short-form merger statutes, Libby was being merged into UFS. Under the terms of the merger each shareholder was entitled to receive $ 8 1/8 for each share of common stock or to request an appraisal of the fair value of their shares.
The debentureholders were given two options: (1) they could continue to hold their debentures until redemption, thereby receiving the regular 5% interest payments until 1989
or (2) they could convert their debentures into $ 500.74 in cash for each $ 1000 principal amount of debentures.
On March 26, 1976, three days before the effective date of the merger and eight months after the filing of the complaint, the plaintiffs sought a preliminary injunction enjoining the merger. This court denied plaintiffs' motion and its decision was affirmed on appeal. Merrit v. Libby, McNeil & Libby, 533 F.2d 1310 (2d Cir. 1976).
II. The Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6)
The defendants contend that the Supreme Court's decision in Santa Fe v. Green and its progeny requires dismissal of the complaint. The plaintiffs in Santa Fe, not unlike the plaintiffs herein, alleged that the defendants had violated the federal securities laws by virtue of their undervaluation of the minority shares in connection with a short-form merger under Delaware law. The lower court held that plaintiffs could recover damages under § 10(b) of the 1934 Act
where a majority shareholder allegedly effected a statutory merger under Delaware law for the sole purpose of eliminating the minority stockholder. The Supreme Court reversed, holding that Congress did not intend § 10(b) to regulate transactions which constitute no more than corporate mismanagement or a breach of fiduciary duty. 430 U.S. at 479, 97 S. Ct. at 1304 (citation omitted). The Court expressly rejected the view that Rule 10b-5, 17 C.F.R. § 240.10b-5, embodied a "federal fiduciary principle" which was different from that applicable under state law. id. Foreshadowing the Court's later pronouncements in Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979) and TransAmerica Mortgage Advisors v. Lewis, 444 U.S. 11, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979) on the significance of legislative intent in determining the scope of the antifraud provisions of the federal securities laws, Justice White observed that "absent a clear indication of congressional intent, we are reluctant to federalize the substantial portion of the law of corporations that deals with transactions in securities, particularly where established state policies of corporate regulation would be overridden." 430 U.S. at 479, 97 S. Ct. at 1304. Thus, the teaching of Sante Fe is that the antifraud provisions of the federal securities laws are ancillary to the 1934 Act's "fundamental purpose" of "full and fair disclosure," and once disclosure has been made, it is state corporate law that governs the fairness of a transaction. See Popkin v. Bishop, 464 F.2d 714 (2d Cir. 1972).
In assessing the sufficiency of the complaint in light of Santa Fe the court is required to deem the allegations in the complaint as true, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515, 92 S. Ct. 609, 614, 30 L. Ed. 2d 642 (1972), and is precluded from dismissing the complaint unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). I conclude that the complaint states a claim under the federal securities laws.
Notwithstanding the fact that certain of plaintiffs' allegations are insufficient under Sante Fe because the averments amount to little more than objections to the fairness of the UFS-Libby transaction cast in the language of nondisclosure, Altman v. Knight, 431 F. Supp. 309 (S.D.N.Y. 1977), Dent v. Heller Robers Instruments Corp. [1977-78 Transfer Binder] CCH FED. SEC. L. REP. par. 96,060 (E.D.N.Y. April 22, 1977), several of the alleged nondisclosures present cognizable claims under the antifraud provisions of the federal securities laws. As Judge Friendly stated in Goldberg v. Meridor, 567 F.2d 209 (2d Cir. 1977),
We do not read Green as ruling that no action lies under Rule 10b-5 when a controlling corporation causes a partly owned subsidiary to sell its securities to the parent in a fraudulent transaction and fails to make a disclosure or, as can be alleged here, makes a misleading disclosure.
Id. at 218. Thus, although a breach of fiduciary duty by majority stockholders, without deception, misrepresentation, or nondisclosure, does not violate the statute and the Rule, 567 F.2d at 218, allegations of material misstatements or omissions in connection with the purchase or sale of securities do state a claim under the 1934 Act.
Turning to the complaint, plaintiffs allege that the Nestle defendants failed to disclose in their offering circular or in their SEC filings that the market price of the Libby common stock and debentures "were the result of a market artificially depressed by the acts and conduct of the defendants." Complaint par. 45(a). The essence of plaintiffs' claim here is that, in 1974, Nestle caused Libby not to reinstate its policy of cash dividend distribution, which had been terminated in 1961, and to suspend issuance of stock dividends in lieu of cash dividends in 1967. Plaintiffs contend that the Libby directors and Nestle acted in concert to perform these acts in an effort to depress the market price of Libby's common stock so as to facilitate Nestle's acquisition of Libby stock at bargain prices and to limit the total number of outstanding Libby shares.
Defendants, relying on Marsh v. Armada Corp., 533 F.2d 978 (6th Cir. 1976), cert. denied, 430 U.S. 954, 97 S. Ct. 1598, 51 L. Ed. 2d 803 (1977), contend that the nonpayment of dividends for an improper purpose does not state a claim under § 10(b) or Rule 10b-5. The decision in Marsh is clearly inapposite. In Marsh, Armanda Corporation, a holder of 51% of common stock of Hoskins Manufacturing Company, made a written tender offer for the outstanding shares of Hoskins in which it announced its intention to eliminate the dividends previously paid to Hoskins' shareholders. Former shareholders of Hoskins sued under § 10(b) alleging that the elimination of their dividend rights was fraudulent per se. In rejecting plaintiffs' claim, the court noted that Armanda had not deceived or defrauded the shareholders by failing to make full disclosure. By contrast, plaintiffs herein allege two material nondisclosures. First, plaintiffs aver that defendants engaged in a "scheme to defraud" the Libby shareholders by causing Libby to eliminate cash and stock dividends in an effort to depress the market price of the Libby common stock. In addition, the complaint alleges that these acts were part of a larger scheme pursuant to which Nestle acquired the Libby shares at a "bargain" price. ...