Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Donoghue v. Corp.

February 2, 2009


The opinion of the court was delivered by: Sand, J.


Plaintiff Deborah Donoghue, an investor in Corp., brings this shareholder derivative action against Defendant Hearst Communications, Inc. to recover short-swing profits under section 16(b) of the Securities Exchange Act of 1934. Donoghue alleges that Hearst violated section 16(b) on August 1, 2007 by selling and purchasing matching warrants of within a six-month period while maintaining insider status.*fn1 Hearst has moved for summary judgment to dismiss Plaintiff's action. Hearst asserts that it was not an insider at the time of its transaction because new shares of were outstanding prior to its deemed purchase. For the reasons set forth below, Hearst's motion for summary judgment is granted.*fn2

I. Background

The facts laid out below are not in dispute. On July 9, 2007, Hearst effectively purchased shares and warrants for shares of*fn3 Based on the terms of Hearst's purchase agreement, could not issue any new shares of its common stock for a period of ninety days, without the written consent of Hearst. Subsequent to that agreement, determined that it wished to acquire new financing prior to the conclusion of the ninety day period. On July 31, 2007, Hearst consented to the issuance of new shares "[p]rovided that [] files a Form 8-K disclosing the terms of this Consent no later than 5:00 p.m., New York time, on August 1, 2007 . . . ." (Hearst Consent Equity Sales, Ex. H Wargo Decl.) Under the terms of Hearst's written consent, agreed to provide Hearst with amended stock warrants reducing the exercise price of Hearst's warrants for stock by fifty cents ($0.50) per share at the time that the Form 8-K was filed.*fn4 Upon providing its written consent, Hearst's role in the issuance of the new stock was complete.

Also on July 31, 2007,'s Board of Directors met and approved a private placement of common stock and warrants to third party investors not related to this case. entered into a Securities Purchase Agreement ("SPA") with the third-party investors that outlined the issuance and sale of, among other things, 2,356,900 shares of its common stock. At the time of the Board meeting, and until the new shares became outstanding securities, Hearst owned more than ten percent of's common stock.*fn5 However, Hearst no longer owned more than ten percent of's common stock once the new shares became outstanding securities because the new securities diluted Hearst's percentage ownership of*fn6

On August 1, 2007, the third party investors paid for the new shares. The money was wire transferred directly to bank accounts. (Norman Dep. 63:20--65:13.) Upon completing the full payment at 4:06 p.m. (Wire Transfer Notice Bank Account, Ex. G Wargo Decl.),*fn7 the third parties were not required to take any other affirmative steps under the SPA (SPA at 22--23, Ex. D Wargo Decl.). Concurrently, was arranging for the release of its share certificates. At 12:46 p.m. on August 1, sent an email to its stock Registrar and Transfer Agent ("Transfer Agent") asking him to prepare the release of the certificates but instructing that he should "not release the certificates until we give approval." (Email to Transfer Agent, Ex. K Wargo Decl.) At 4:32 p.m., filed a Form 8-K with the Securities & Exchange Commission in compliance with a condition of Hearst's consent. At 4:45 p.m., sent an email to its Transfer Agent instructing him to release the share certificates. The Transfer Agent for emailed back-copies of the certificates to the third parties at 5:44 p.m.

As a result of the sequence of events of August 1, Plaintiff brought a shareholder derivative action against Hearst for violating section 16(b) by being insider who sold and purchased matching warrants of within a six-month period. Specifically, Plaintiff asserts that filing the 8-K at 4:32 p.m. triggered a cancellation and re-granting of Hearst's warrants at the newly agreed upon price and that Hearst was an insider at 4:32 p.m. because the new shares had not been issued to the third parties until 4:45 p.m. In more plain terms, Plaintiff asserts that Hearst violated section 16(b) by thirteen minutes-the gap in time between the filing of the 8-K at 4:32 p.m. and the email from instructing the Transfer Agent to issue the certificates at 4:45 p.m.

On February 11, 2008, Hearst moved for a judgment on the pleadings. Hearst asserted that, based on the pleadings, the new shares were owned by the third parties prior to the filing of the 8-K, resulting in Hearst owning less than ten percent of at the time that the Form 8-K was filed. This Court reserved judgment on that motion in a hearing on March 12, 2008. On June 26, 2008, pursuant to the agreement of Plaintiff and Hearst, this Court ordered that Hearst's motion for judgment on the pleadings be converted to a motion for summary judgment.

II. Discussion

As per the Court's order, Hearst moves for summary judgment in the following proceeding. Summary judgment shall be granted when 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." Fed. R. Civ. P. 56(c). A "genuine issue of material fact" exists if the evidence is such that a reasonable jury could find in favor of the non-moving party. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In deciding a summary judgment motion, the court must "resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion." Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

Section 16(b) of the Exchange Act seeks to deter insiders, who are presumed to possess material information about the issuer, from using such information to gain an advantage over persons with whom they trade. See 15 U.S.C. § 78p. The statute is violated when any person who owns more than ten percent of any class of the issuer's registered equity securities derives a profit from the matching of any purchase and sale or any sale and purchase of an equity security within a six-month period. Id. Donoghue asserts that Hearst violated section 16(b) the moment that filed the 8-K. This assertion is based on two premises. First, Donoghue claims that the 8-K filing triggered a deemed purchase of Hearst's warrants because the "discretionary reductions in the exercise prices" of the warrants were "material changes in the terms of those warrants resulting in a deemed cancellation of the pre-existing warrants and a re-grant of new warrants." (Compl. ¶ 14.) Second, Donoghue asserts that Hearst was an insider at 4:32 p.m. because the new shares of were not issued to the third party investors until 4:45 p.m.

Hearst moves for summary judgment on the claim that it was not an insider at the time that the 8-K was filed. Hearst contends that the third parties owned the new shares of when their full payment was received by at 4:06 p.m.*fn8 Because the vesting of ownership in the third parties at 4:06 p.m. resulted in Hearst no longer being an insider, Hearst argues that it was could not have violated section 16(b) at 4:32 p.m. when the Form 8-K was filed. This Court finds that Hearst was not an insider when the deemed purchase was made because the third parties owned the new shares of when payment was received by

The issue in this case is ultimately whether the third parties owned their new shares of before 4:32 p.m., the moment at which Hearst's deemed purchase was made.*fn9 Hearst did not commit a section 16(b) violation so long as Hearst's insider status was extinguished through the increase in outstanding shares before the time of its deemed purchase. At 4:06 p.m., prior to the time of the deemed purchase, payment of full consideration by the third parties was received by via wire transfer directly into its account. The only steps that took place after 4:06 p.m. were the filing of the Form 8-K, a condition of Hearst's consent, and the issuance of the certificates to the third parties. Neither of these events was necessary to vest ownership in the third party investors.

Plaintiff does not contest the well-accepted rule that ownership of a security does not turn on the possession of a share certificate because the issuance of a share certificate is merely an indicium of ownership. In re Rappaport, 487 N.Y.S.2d 376, 378 (App. Div. 1985); In re Zarnin, 645 N.Y.S.2d 304, 305 (App. Div. 1996); e.g., In re Chubby's Parkchester, Inc., 94 F. Supp. 701, 704 (S.D.N.Y. 1951) (holding that a person who provided funds "to the corporation in payment for stock therein to be purchased by him . . . thereby became a shareholder of the corporation notwithstanding that he never received a stock certificate"). Plaintiff also does not contest the general rule that the privileges and rights of ownership are gained once the full consideration has been tendered for the security. Rappaport, 487 N.Y.S.2d at 378 ("When the consideration for shares has been paid in full, the subscriber is considered a holder of the shares and is entitled to all rights and privileges thereof.") (citation omitted); United States Radiator Corp. v. State of New York, 101 N.E. 783, 785 (N.Y. 1913) (stating that "it is the payment, or the obligation to pay for shares of stock, accepted by the corporation, that creates both the shares and their ownership"); Walsh v. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.