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Wilson v. Saintine Exploration and Drilling Corp.

decided: April 5, 1989.

KENNETH J. WILSON, PLAINTIFF-APPELLEE,
v.
SAINTINE EXPLORATION AND DRILLING CORPORATION AND THE ESTATE OF ROBERT D.P. WELCH, FRED A. RODOLFY AND RUFFA & HANOVER, P.C., DEFENDANTS, RUFFA & HANOVER, P.C., DEFENDANT-APPELLANT



We vacate our earlier opinion to reconsider the imposition of collateral participant liability under Section 12(2) of the Securities Act of 1933 in light of the Supreme Court's decision in Pinter v. Dahl, 108 S. Ct. 2063 (1988). Affirmed. Judge Timbers filed a dissenting opinion.

Timbers, Winter and Mahoney, Circuit Judges.

Author: Winter

WINTER, Circuit Judge

We have vacated our prior opinion in this matter, reported at 844 F.2d 81 (2d Cir. 1988), so that the parties might rebrief and reargue the case in light of Pinter v. Dahl, 486 U.S. 622, 108 S. Ct. 2063, 100 L. Ed. 2d 658 (1988). In view of the suggestion in Judge Timber's dissent, we invited the Securities and Exchange Commission ("SEC") to file a brief amicus curiae. We now affirm our original holding, though on the rather different grounds required by Pinter.

BACKGROUND

We assume familiarity with our prior opinion and summarize only the salient facts here. In March 1981, Fred Rodolfy suggested to appellee Kenneth Wilson that Wilson invest in the stock of Saintine Exploration and Drilling Corporation ("Saintine"), a concern of which Rodolfy was a principal shareholder and chairman. Early in April, Wilson received a private placement memorandum and a subscription package for the private offering of one million shares of Saintine common stock. These offering materials had been prepared by Saintine's counsel, Ruffa & Hanover, and were accompanied by a cover letter on Ruffa & Hanover stationery stating that the materials were being sent to Wilson at the request of Rodolfy and the president of Saintine, Robert Welch. Wilson received a revised private placement memorandum in mid-April that did not differ in any material respect from the original memorandum. The private placement memoranda contained a misrepresentation in stating that Saintine had already purchased the rights to explore and develop certain oil and gas interests in Honduras. No agreement to purchase those rights was reached, however, until May 27, 1981. On May 7, 1981, Wilson purchased 90,000 shares of Saintine stock for $36,000. Saintine never embarked on the promised drilling program for reasons unrelated to the misrepresentation. In early 1982, Rodolfy telephoned Wilson to inform him that Welch would refund his investment. Only $5,000 was ever refunded, however.

As stipulated by the parties, testified to by Wilson at trial, found by the district court and reaffirmed by Wilson's counsel at the most recent oral argument, Ruffa & Hanover's cover letter accompanying the original private placement memorandum constituted the only direct contact between Ruffa & Hanover and Wilson. Wilson's counsel assured us at that argument, moreover, that he has no other evidence concerning Ruffa & Hanover's participation and does not desire a remand.

In our previous opinion, we held that Ruffa & Hanover was not liable for Wilson's loss under Section 12(2) of the Securities Act of 1933, 15 U.S.C. § 771(2)(1982). We recognized that although Ruffa & Hanover was not a "person who . . . offers or sells a security," it was potentially liable under Section 12(2) as a collateral participant. See Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973)(in banc). Lanza stated, however, that the standard of liability dictated by the language of Section 12(2), reasonable care, applied only to actual sellers in privity with the plaintiff and that scienter had to be shown to hold collateral participants liable. Id. at 1298. In that context, our prior decision in the instant matter held that loss causation was also an element of an action against collateral participants under Section 12(2). We concluded that, because the misrepresentation was unrelated to Wilson's loss, Ruffa & Hanover was not liable under Section 12(2).

On June 7, 1988, the panel denied by a two-to-one vote, Judge Timbers dissenting, a petition for rehearing. Subsequent to that denial, the Supreme Court addressed the meaning of the words "any person who . . . offers or sells a security," as used in Section 12(1) of the Securities Act of 1933, 15 U.S.C. § 771(1)(1982). Because this language is identical to the language of Section 12(2), we decided to reconsider our decision in light of Pinter.

Discussion

Pinter involved the threshold question of the meaning of "any person who . . . offers or sells a security" as that phrase is used in Section 12(1). It expressly held that only statutory "sellers" may be liable under Section 12(1) and that collateral participants who do not solicit sales cannot be liable under Section 12(1) whether or not loss causation is proven. Pinter thus stated that, although privity is not essential, "the language of Section 12[1] contemplates a buyer-seller relationship not unlike traditional contractual privity." Pinter, 108 S .Ct. at 2076. The Court went on to include as statutory sellers only those who actually solicit the sale of securities for financial gain. Id. at 2079. The opinion expressly rejected various tests that have been utilized by courts to include non-soliciting collateral participants as defendants in actions under Section 12(1) even where those participants were essential to the transaction. It thus stated,

there is no support in the statutory language . . . for expansion of § 12(1) primary liability beyond persons who pass title and persons who 'offer,' including those who 'solicit' offers. Indeed, § 12's failure to impose express liability for mere participation in unlawful sales transactions suggests that Congress did not intend that the section impose liability on participants collateral to the offer or sale.

Id. at 2080. The opinion went on to explain that even if a plaintiff were to prove causation, presumably including loss causation, that would be insufficient to hold someone liable under Section 12(1) who had not solicited sales. Id. at 2081. ("Further, no congressional intent to incorporate tort law doctrines of reliance and causation into § 12(1) emerges from the language or the legislative history of the statute.").

The Pinter court expressly limited its holding to Section 12(1) and reserved decision on whether the identical language of Sections 12(1) and 12(2) has a common meaning. Id. at 2076 n.20. We have held, however, that the two sections are identical in meaning, Schillner v. H. Vaughan Clarke & Co., 134 F.2d 875 (2d Cir. 1943), and that Pinter applies to Section 12(2). Capri v. Murphy, 856 F.2d 473, slip op. at 6032 (2d Cir. 1988). We are thus obliged to consider the implications of Pinter for our caselaw under Section 12(2).

Those implications are twofold, in part expanding, and in part contracting, the category of persons potentially liable under Section 12(2). To reiterate, our prior caselaw distinguished between persons in privity with a buyer and collateral participants in the transaction. Lanza, 479 F.2d at 1298. Those in privity were subject to the literal terms of Section 12(2), including liability for negligent misrepresentation. In contrast, collateral participants could be held liable only if they had scienter, id., and, under our prior opinion in this case, loss causation was shown.

Persons who are not in privity with the plaintiff but who would have been collateral participants under our former caselaw will now be statutory sellers within the meaning of Pinter if they solicited the sales in question for a financial gain. Such persons may now be liable under Section 12 whether or not scienter or loss causation is shown. For example, in Mayer v. Oil Field Systems Corp., 803 F.2d 749 (2d Cir. 1986), a partnership's general partners fulfilled their pay-out obligation to limited partners by exchanging all shares of the partnership for stock of another entity. That stock traded at a disappointing price, and the limited partners sued. We held that the general partners were not in privity with the limited partners and were thus collateral participants. Because they lacked scienter, they could not be liable under Section 12(2). 803 F.2d at 756. Had Mayer been decided under the Pinter standard, however, we would have had to consider, not whether the general partners had scienter, but whether their causing the exchange for financial gain was the legal equivalent of solicitation of a sale.

In another respect, Pinter contracts the category of persons potentially liable under our Section 12(2) caselaw. After Pinter, some persons who are not in privity with the plaintiff but who would have been collateral participants under our prior caselaw are now not statutory sellers because they did not solicit the sales ...


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