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C.R.A. REALTY CORP. v. ENRON CORP.

January 10, 1994

C.R.A. REALTY CORPORATION, Plaintiff,
v.
ENRON CORPORATION and GOLDMAN, SACHS & CO., Defendants.



The opinion of the court was delivered by: MICHAEL B. MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 Plaintiff C.R.A. Realty Corporation ("C.R.A.") sues to force disgorgement of short-swing profits under Section 16 of the Securities Exchange Act of 1934 (the "Act"), and Rule 16(b) thereunder. C.R.A. asserts that defendant Goldman, Sachs & Co. ("Goldman") misreported the day on which it became subject to Rule 16(b) as a beneficial holder of more than ten percent of the convertible preferred stock of defendant Enron Corporation ("Enron"). Defendants Goldman and Enron claim that Goldman correctly reported the day on which it became a ten percent holder, and that Goldman already has disgorged profits in compliance with Rule 16(b). Plaintiff moves for partial summary judgment on the issue of liability, and Goldman cross-moves for summary judgment. For the reasons set forth below, Goldman's motion for summary judgment is granted.

 I.

 This action arises from Goldman's ownership of convertible preferred stock issued by Enron. The parties dispute when Goldman should be considered to have owned ten percent of the convertible preferred stock, and therefore as of when it became obligated to disgorge short-swing profits under Section 16(b) of the Act. See 15 U.S.C. § 78p. The number of shares owned by Goldman at each relevant time is undisputed. However, plaintiff uses actual numbers of shares outstanding to compute Goldman's percentage of ownership and concludes that Goldman crossed the ten percent threshold on November 29, 1991. (Pl. Mem. at 5) Defendants use the number of shares outstanding as reported in public records available at the time of Goldman's purchase of additional shares, and they conclude that Goldman did not cross the ten percent threshold until January 15, 1992. (Goldman Mem. at 7; Enron Mem. at 3-4) It is undisputed that Goldman ceased being a ten percent owner on July 29, 1992.

 In late 1991, the actual total number of shares of Enron convertible preferred stock changed frequently because holders other than Goldman converted preferred stock into common stock. (Pl. 3(g) Stmt P 4; Goldman 3(g) Stmt PP 6, 7) Plaintiff knows the actual number of shares at each relevant date only because Enron produced this information during discovery; those numbers were not public. (Pl. 3(g) Stmt P 4) Goldman maintained the same number of shares throughout November and December of 1991, (Goldman 3(g) Stmt PP 3, 4) and the alleged change of status to ten percent ownership on November 29 was caused by a reduction in the total number of shares due to conversions by other holders. (Pl. 3(g) Stmt P 4; Goldman 3(g) Stmt P 7) Thus, Goldman took no action to bring about the change in status and had no knowledge of it.

 Goldman and Enron contend that Goldman did not become a ten percent owner under Section 16(b) until January 15, 1992, when Goldman made an additional purchase of Enron convertible preferred stock. After that purchase, Goldman crossed the ten percent threshold based on the total number of shares reported in the most recent public disclosures then available -- Enron's Form 10Q for the quarter ending September 30, 1991. However, Goldman did not make the necessary filings to show its ownership until July 30, 1992. (Goldman Mem. at 7; Pl. 3(g) Stmt P 9) At the time the filings were made, additional public information was available as to the number of shares outstanding on December 31, 1991. As an alternative to the argument that Goldman should be held responsible for its percentage of the actual number of shares outstanding at all times, plaintiff contends that Goldman should be required at least to use public information available as of the time of filing. (Pl. Rep. at 7) This would make Goldman a ten percent holder as of December 31, 1991.

 Goldman and Enron settled Enron's claim for short-swing profits earned between January 15 and July 29, 1992, for $ 415,002.40. (Pl. 3(g) Stmt P 12; Goldman 3(g) Stmt P 13) Plaintiff C.R.A., a shareholder of Enron, claims that Goldman is also liable for short-swing profits earned between November 29, 1991 and January 15, 1992, or between December 31, 1991 and January 15, 1992. (Pl. Mem. at 21, 29) For the reasons explained below, I find that Goldman and Enron used the correct number of shares outstanding to compute Goldman's ownership stake in Enron convertible preferred stock. Thus, Goldman was not a ten percent holder for the purposes of Section 16(b) until January 15, 1992, and has fully accounted for its short-swing profits.

 II.

 Summary judgment is appropriate if the evidence demonstrates that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Finz v. Schlesinger, 957 F.2d 78, 81 (2d Cir.), cert. denied, 121 L. Ed. 2d 38, 113 S. Ct. 72 (1992). Because granting the motion denies the nonmoving party a trial on the merits, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Gibson v. American Broadcasting Cos., 892 F.2d 1128, 1134 (2d Cir. 1989). Here, no factual issues have been raised regarding the number of shares owned by Goldman or the number of shares outstanding at any point in time. The issue in dispute is purely a matter of law, and summary judgment is appropriate.

 III.

 Effective May 1, 1991, the SEC expressly incorporated the rules under Section 13 into those under Section 16 of the Act for the purposes of determining ten percent ownership. See SEC Release No. 28869, [1990-1991 Transfer Binder]Fed. Sec. L. Rep. (CCH) P 84,709 at 81,248 (Feb. 8, 1991); 17 C.F.R. § 240.16a-1 (1992). Plaintiff argues that the new provision, Rule 16a-1, incorporated Section 13 only into Section 16(a) of the Act and does not apply to Section 16(b) of the Act, which addresses the disgorgement of short-swing profits. (Pl. Mem. at 13) The interpretation of Rule 16a-1 is critical because Goldman's reliance on publicly available information in calculating its ownership stake is permissible under Rule 13d-1(e). Rule 13d-1(e) provides:

 
Any person, in determining the amount of outstanding securities of a class of equity securities, may rely upon information set forth in the issuer's most recent quarterly or annual report, and any current report subsequent thereto, filed with the [Securities and Exchange] Commission pursuant to this Act, unless he knows or has reason to believe that the information contained therein is inaccurate.

 17 C.F.R. § 240.13d-1(e). If this provision applies to Section 16(b), Goldman correctly determined its percentage of ownership and is not subject to ...


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