stems from his position as [a potential competing bidder]." Kalmanovitz, 769 F.2d at 159.
American argues, however, that in Marathon Oil the court held that the tender offeror has an implied cause of action under § 14(e), reasoning in part that allowing such a cause of action would promote the statute's purpose to provide shareholders with accurate information. It is important to note, however, that Marathon did not involve the issue of standing to assert another's rights, but rather the question of whether the Court should find an implied cause of action under Section 14(e) on behalf of the tender offeror. Indeed, as noted above, the Court rejected the tender offeror's claim to standing as a shareholder, while implicitly finding it appropriate as a tender offeror. Marathon Oil, 669 F.2d 366 at 370-71. American, in this case, is not a competing tender offeror. American is no more than a dog in the manger waiting to pick the bones of Air Wis should the proposed merger die as a result of its efforts.
In the tender offer context, each of the competing tender offerors is holding itself out as willing to purchase the stock of the shareholders whose shares are being solicited. Each is required to make accurate disclosure of relevant information and will suffer a direct and real injury if its adversary is permitted to solicit the purchase of the same shares on the basis of false and misleading information. Thus, each tender offeror is a real participant in the tender offer process regulated by Section 14(e), and recognizing their right to an implied cause of action does no violence to the case or controversy doctrine or to traditional notions of standing.
Here, American is at most an interested bystander. It is not seeking to purchase the stock of Air Wis' shareholders. American is simply trying to bust up a transaction that Air Wis' directors have determined to be in the best interest of all its shareholders, because it hopes to purchase some of Air Wis' assets. There are, no doubt, numerous potential purchasers of various assets that Air Wis might be forced to sell if the proposed merger is not completed. It could not seriously be argued that all those potential purchasers should be granted standing to challenge Air Wis' proxy disclosure.
It is particularly inappropriate to allow American standing to challenge the proxy disclosure in this case where a comparison of the allegations of the original and amended complaints filed by American indicate that the alleged defects in Air Wis' disclosure were matters known to American prior to the time it purchased its shares on November 1, 1991. Thus, in its original complaint, at paragraphs 64 and 65, American complained of false statements allegedly made in a Form 5-4 filed by UAL and Air Wis with the SEC on October 18, 1991 approximately two weeks before American became a shareholder. These alleged misstatements do not vary substantially from the statements in the joint proxy filed in December, which American now seeks to challenge. As a matter of policy, this Court views it appropriate to seek to discourage parties such as American from simply purchasing a lawsuit, which is exactly what American hoped to do when it bought 100 shares of Air Wis stock on November 1, 1991.
UAL also moves to dismiss American's tortious interference claim. While American's pleading in this regard is marginal at best, little purpose would be served by addressing that issue at this point. Even in the motion were granted, American would no doubt seek leave to replead. Since the allegations of this claim appear to raise only factual issues relevant to the antitrust claim as well,
judicial economy suggests that the merits of plaintiff's tortious interference claim be addressed at the conclusion of the trial which is scheduled for February 10, 1992.
Dated: January 16, 1992
JOHN S. MARTIN, JR., U.S.D.J.