FRIENDLY, Circuit Judge:
This appeal raises the vexing question how far instruments bearing the form of promissory notes are securities within the anti-fraud provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934.
The Facts and the Proceedings in the District Court
This action by The Exchange National Bank of Chicago (the Bank) against the well-known accounting firm of Touche, Ross & Company (Touche) was brought in the District Court for the Northern District of Illinois and was transferred, pursuant to 28 U.S.C. § 1404(a), to the District Court for the Southern District of New York. The complaint was in four counts. Count I alleged violation of § 17(a) of the Securities Act of 1933, § 10(b) of the Securities Exchange Act of 1934, and the SEC's Rule 10b-5; Count II claimed a violation of § 18(a) of the 1934 Act; Count IV asserted a violation of §§ 10(b), 15(c), 17(a) and 18(a) of the 1934 Act; and Count III was a pendent state law claim for negligence. All
The transactions were between the Bank and a New York brokerage firm, Weis, Voisin & Co., Inc., later Weis Securities, Inc. (Weis), which was a member of the New York Stock Exchange (NYSE) and the American Stock Exchange. These transactions were the Bank's purchase from Weis of three unsecured subordinated notes dated July 31, 1972, in the aggregate principal amount of $1 million. The conduct was Touche's issuance on July 7, 1972, of opinions saying, among other things, that Weis' Statement of Financial Condition as of May 26, 1972 (the "Statement") and Weis' "Answers to Financial Questionnaire and Additional Information" (the Report), which Weis filed with the SEC pursuant to § 17 of the Securities Exchange Act, fairly presented the financial position of Weis and conformed to generally accepted accounting principles. The Bank alleged that it had relied on these opinions as well as the Statement and the Report, and that the latter were materially false and misleading in numerous respects as Touche knew or should have known when it issued its opinions; that when the false and misleading entries were discovered in May, 1973, Weis had already been placed in receivership and was then being liquidated; and that the notes have become worthless.
Touche moved to dismiss the complaint. Although the motion claimed that the complaint was defective in its allegations of fraud
As indicated, several provisions of the notes were keyed to NYSE's Rule 325, entitled "Capital Requirements for Member Organizations and Individual Members." A basic proviso of this Rule was that no member "shall permit, in the ordinary course of business as a broker, his or its Aggregate Indebtedness to exceed 2000 per centum of his or its Net Capital. . . ."
Opposing affidavits of Melvin K. Lippe, Vice Chairman of the Board of the Bank, of counsel, of a partner of the accounting firm of Coopers & Lybrand, who acted for the Trustee in the SIPC liquidation of Weis, and of a supervisor of the Administrative Staff of the Trustee in the Weis liquidation added flesh to the bare bones of the notes. The Lippe affidavit set forth the circumstances under which the Bank purchased the notes. Stripped of self-serving characterizations such as consistent references to the notes as investments, his factual allegations were substantially as follows:
In the spring of 1972 Lippe was Executive Vice President and Chief Administrative Officer of the Bank and was particularly concerned with expanding the Bank's business; he was not part of the staff which handled normal commercial loans. Early in March, 1972, he was notified by the manager of the Bank's recently opened branch office in Tel Aviv, Israel, that Weis had sought approximately $1 million for the expansion of its brokerage activities both in the United States and abroad. Because the Bank was interested in developing a closer relationship between its new Tel Aviv branch and that of Weis, the only American brokerage firm then operating in Israel, and the interest rate proposed by Weis was attractive, Lippe instructed the branch manager that the Bank might be interested.
Shortly thereafter Arthur T. Levine, Weis' Chief Executive Officer, and Sol Leit, its Chief Operating Officer, came to Chicago to negotiate with Lippe. Lippe continued to be interested because of the potential for the Bank's Tel Aviv branch. Levine and Leit indicated that the Bank would be expected to purchase subordinated promissory notes, which would be listed as part of Weis' net capital pursuant to Rule 325; they presented a form of such a note which they said was in conformity with Rule 325. They also exhibited copies of the notes held by Security National Bank and Fidelity Corporation, see note 4 supra. Lippe requested the Weis representative to forward financial statements and any other documents certified by Touche; this led to the sending of the documents previously mentioned. On July 19, 1972, the Bank agreed to purchase for $890,750 three unsecured subordinated notes in the aggregate principal amount of $1 million and the transaction was consummated on August 7, 1972.
After hearing argument Judge Wyatt denied the motion to dismiss for want of subject matter jurisdiction "on the ground that the transaction seems more in the character of an investment than of a commercial loan." He believed, however, that the question was "a close one" which should be reviewed by this court before preparation for trial and offered to make the statement required by 28 U.S.C. § 1292(b). Such a statement was incorporated in the order denying the motion to dismiss, and a panel of this court granted leave to appeal.
Propriety of Deciding a Rule 12(b)(1) Motion on Affidavits
We deal at the outset with a suggestion of the defendant that the district court could not properly deny its motion to dismiss for want of subject matter jurisdiction on the basis of factual statements in plaintiff's affidavits.
In Land v. Dollar, 330 U.S. 731, 735 & n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), Mr. Justice Douglas referred to the "general rule [that] the District Court would have authority to consider questions of jurisdiction on the basis of affidavits as well as the pleadings." He footnoted this statement with the following:
Since 1947, however, Rule 12(b) was amended, effective March 19, 1948, to provide that a motion to dismiss for failure to state a claim based on matter outside the pleadings can be treated as a motion for summary judgment, without any corresponding amendment authorizing affidavits or other extra-pleading materials to be considered on a motion to dismiss for lack of subject matter jurisdiction. Thus there has been some controversy as to the use of such materials in the context of a 12(b)(1) motion, see Winkelman v. New York Stock Exchange, 445 F.2d 786 (3 Cir. 1971); cf. Rosemound Sand & Gravel v. Lambert Sand & Gravel, 469 F.2d 416 (5 Cir. 1972), based on the view that, since Rule 12 allows a "speaking" motion to be treated as a Rule 56 motion only when the motion is under subdivision (6), the rulemakers must have disapproved the use of extra-pleading material under another subdivision, particularly since this would deprive the plaintiff of the various Rule 56 safeguards.
The argument ignores the important difference that judgments under Rule 12(b)(6)
The only relevance of Rule 56 to a motion under Rule 12(b)(1) is that a body of decisions has developed under Rule 56 that offer guidelines which assist in resolving the problem encountered if the affidavits submitted on a 12(b)(1) motion should reveal the existence of factual problems. If this should occur, a court should consider allowing a party to utilize some of the procedures outlined in Rule 56(e), if this is requested, and conceivably a case could arise where even these would not suffice. But just as under Rule 56, a party opposing a Rule 12(b)(1) motion cannot rest on the mere assertion that factual issues may exist. Beal v. Lindsay, 468 F.2d 287, 291 (2 Cir. 1972); Dressler v. MV Sandpiper, 331 F.2d 130, 133 (2 Cir. 1964). Touche has not indicated what facts in plaintiff's affidavits, as distinguished from conclusory characterizations and arguments, it desires to controvert, and our decision that the motion to dismiss was properly denied does not turn on any facts which it could.
As we pointed out in Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 799 (2 Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973):
It should be added that the definition sections of both statutes, § 2 of the 1933 Act and § 3 of the 1934 Act, begin with the words:
The sparse legislative history is analyzed in a Note, The Commercial Paper Market and the Securities Acts, 39 U.Chi.L.Rev. 362, 381-83, 397-98 (1972). The source of the registration exemption in § 3(a)(3) of the 1933 Act was a letter from the Secretary of the Federal Reserve Board to the Chairmen of the House and Senate Committees. The Board thought it apparent that the proposed act was
The amendment was suggested because it seemed to the Board that the Act was
Except for the prefatory language in § 2, the terms of the 1933 Act would thus have the result of subjecting to the anti-fraud provisions, in contrast to the registration requirements, any note, however short the term and however far the transaction was from being an investment security.
When the 1934 Act was passed there was no need for a special exemption of notes from registration, since the registration requirement was tied to transactions on a national stock exchange, § 12(a).
Except for the prefatory language in § 3 the letter of the 1934 Act would thus have the result that any note with a maturity in excess of nine months would be subject to the antifraud provisions whereas any note with a shorter maturity would be exempt from them.
This court's first encounter with the problem whether notes were to be considered as securities within the 1934 Act came in Movielab, Inc. v. Berkey Photo, Inc., 452 F.2d 662 (2 Cir. 1971), affirming, 321 F.Supp. 806 (S.D.N.Y.1970). There one publicly held company, the defendant Berkey, had sold assets to another, the plaintiff Movielab, allegedly through misrepresentations, for two 20-year installment 8% purchase notes, each in the amount of $5,250,000 and a shorter term note of $4,178,312. Movielab sought rescission and damages. Plainly these were not "commercial" loans. Berkey was not in the business of making these, and the transaction was not functionally different than if Movielab had issued 20-year debentures. After pointing out in somewhat of an understatement that the definition "includes some notes at the very least", this court thought there could hardly be a clearer case for inclusion that "notes issued by one publicly owned company to another publicly owned company for $10,500,000, payable over a period of 20 years, in exchange for the assets of the latter . . . ."
Zeller, supra, 476 F.2d at 798-801, was a somewhat closer case. The alleged "security" there was a demand note for $315,310 issued by a parent to a subsidiary to replace open account loans it had previously forced the subsidiary to make. In holding the note to come within § 3(a)(10) of the 1934 Act, we chose not to place our decision on the basis that a demand note is not within the
Our opinion relied in considerable degree on Securities Act Release No. 4412, narrowly interpreting § 3(a)(3) of the 1933 Act, see 476 F.2d at 799, which we thought to have at least some application to the exemption in § 3(a)(10) of the 1934 Act. Zeller was followed and somewhat extended in SEC v. Continental Commodities Corp., 497 F.2d 516, 523-27 (5 Cir. 1974), which held that notes, some of which were to mature in less than 9 months, issued to reimburse dissatisfied customers of a brokerage firm were securities.
Nevertheless, the Fifth Circuit's oft-cited dictum in Lehigh Valley Trust Co. v. Central Nat'l Bank of Jacksonville, 409 F.2d 989, 991-92 (1969), that the "definition of a security has been literally read by the judiciary to the extent that almost all notes are held to be securities," has been considerably eroded, in part by that court itself. A contributing factor has been the first two sentences in the passage of our Zeller opinion, 476 F.2d at 800, quoted above.
The first blow by a court of appeals was struck in Lino v. City Investing Co., 487 F.2d 689 (3 Cir. 1973). Lino had acquired two Franchise Sales Center Licensing Agreements from Franchise International (FI), a wholly-owned subsidiary of City Investing. This purchase, for cash and promissory notes of a term unspecified in the opinion, was allegedly the result of FI's fraud. Reversing the district court, the court of appeals, after referring to the "unless the context otherwise requires" clause, said, 487 F.2d at 694-95:
As to the district court's reliance on Movielab, the court said, 487 F.2d at 695-96:
Next came two Fifth Circuit cases holding that notes issued to obtain bank loans were not securities within the federal securities law. Bellah v. First National Bank of Hereford, 495 F.2d 1109 (5 Cir. 1974), involved a borrower's attempt to use § 10 of the 1934 Act and Rule 10b-5 in order to avoid a six-month note executed to renew indebtedness secured by a deed of trust on real estate that had come due. In rejecting this the court chose not to rely on the short term of the note but placed its decision on the ground that the note was "issued in the context of a commercial loan transaction." Speaking through Judge Gewin, it expressed doubt that Congress intended by the securities laws "to render federal judges the guardians of all beguiled makers or payees." 495 F.2d 1114. This was followed in McClure v. First Nat'l Bank of Lubbock, 497 F.2d 490 (5 Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975), in which plaintiff, half-owner of a corporation, unsuccessfully invoked the federal securities law to recover foreclosed corporate assets which had been pledged to secure a $200,000 one-year promissory note taken to obtain funds for the corporation but which, it was alleged, had been fraudulently borrowed from the corporation to repay the personal debts of the other half-owner to the lending bank.
In a thorough opinion which reviewed the pertinent court of appeals decisions, the court answered in the negative. Judge Sprecher recognized the difficulties of "the commercial-investment" dichotomy, saying, 508 F.2d at 1359:
He thought some help could be obtained by use of the criteria in 52 Nebraska L.Rev. at 510-24, cited above, and also referred to the conclusions reached in an article by two New York lawyers experienced in securities law which we quote in the margin.
What makes Judge Wright's approach rather appealing is that the efforts to provide meaningful criteria for decision under "the commercial-investment" dichotomy do not seem to us to carry much promise of success. For example, we do not see much force in the test suggested by the Great Western per curiam "whether the funding party invested `risk capital'." On the one hand, the securities laws cover debt, even supposedly gilt-edged debt, as well as equity; on the other a $5,000 "character" six months' bank loan to enable an old customer to enter a new line of business would scarcely qualify as a "security" although it is surely risk capital. Frequent reference is made to the test laid down by the Supreme Court in SEC v. W. J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244 (1946), in defining what constitutes an "investment contract," namely, "whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." Although the Court has recently said that this "embodies the essential attributes that run through all of the Court's decisions defining a security," United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 852, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 621 (1975), the Court has not yet had the note problem before it, and the test seems to us to be of dubious value in that context. There was no "common enterprise" in Movielab unless a debt relationship suffices to create one; if it does, it would be hard to think of a situation where profits in the shape of interest
Despite this we do not find ourselves able to accept Judge Wright's suggestion that no note given to evidence a bank loan can be a "security." One reason is that, in framing his exception, under the influence of the facts in the case in hand which are also present here, he seems to look at the matter solely, or at least principally, from the standpoint of a bank seeking to invoke the federal securities laws as a remedy supplementing those afforded by state laws. However, as shown by several of the cases cited, often it is the borrower who asserts fraud by the lender. Judge Wright's arguments based on a bank's superior bargaining position and its special investigatory facilities would have little bearing in such a case; indeed the former would weigh in favor of holding the note to be a security. Yet we see nothing in the statutes that would justify holding that the same note was a security when a borrower from a bank invoked federal law and not a security when the bank asserted this.
The foregoing discussion suggests to us that, taking full account of the antiliteralist approach of the Forman opinion, 421 U.S. at 848-51, 95 S.Ct. 2051, the best alternative now available may lie in greater recourse to the statutory language. The 1934 Act says that the term "security" includes "any note . . . [excepting one] which has a maturity at the time of issuance of not exceeding nine months," and the 1933 Act says that the term means "any note" save for the registration exemption in § 3(a)(3). These are the plain terms of both acts, to be applied "unless the context otherwise requires." A party asserting that a note of more than nine months maturity is not within the 1934 Act (or that a note with a maturity of nine months or less is within it) or that any note is not within the antifraud provisions of the 1933 Act
If ours is the correct approach, affirmance is clearly demanded—as it doubtless also would be by the "commercial-investment" dichotomy, although not, we suppose, by Judge Wright's Great Western concurrence. The Weis transaction is at the opposite pole from the typical "mercantile" transactions we have mentioned. The "loan" was negotiated with the Bank's chief administrative officer, not with a lending officer. The form of the note was dictated not by the Bank but directly by the borrower and ultimately by NYSE. The notes themselves bore scant resemblance to the standard forms used in commercial lending. While the notes purported to mature at dates ranging from 12 to 18 months from issuance, collection at the stated dates or later depended on the lender's giving six months' written notice. More important of all were the subordinated character of the notes and the knowledge of both parties that the proceeds would be considered by NYSE as the equivalent of equity capital for the purpose of enabling Weis further to expand its business by borrowing sums that would permit it to extend more credit to major customers. Transferability of the
We are not called upon to decide, and intimate no opinion concerning, the question whether these notes, though not within the 1934 Act's exemption, are also outside the 1933 Act's exception from registration. Apart from minor differences in language—principally the requirement of the 1933 Act that exempted notes should reflect a current transaction, an elusive concept given the almost universal practice of continuous roll-over—the purposes of the registration and anti-fraud provisions differ, thus altering the "context" to be examined to determine whether the admonition "unless the context otherwise requires" is to be applied.
The order denying Touche's motion to dismiss on the ground that the notes were not "securities" within the federal securities laws is affirmed. It goes without saying that we have not passed on other defenses, notably the effect of the recent decision in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668, 44 U.S.L.W. 4451 (1976), see note 2 supra.
The Public Utility Holding Company Act of 1935, § 2(a)(16), uses the slightly different version,
Thus none of these five acts limits the application of its provisions as they relate to notes by limiting the definition of a "security," as does the 1934 Act's § 3(a)(10). However, with the exception of the Investment Adviser's Act, each provides an explicit exemption of some sort for activities in commercial paper. Besides the 1933 Act's § 3(a)(3) exemption from registration, quoted in the text above, § 6(b) of the Public Utilities Holding Company Act provides
Section 304(a) of the Trust Indenture Act provides,
And § 3 of the Investment Company Act exempts, by declaring not to be an "investment company"
See also a postscript by the same authors, "Notes" Are Not Always Securities, 30 Bus.Lawyer 763 (1975).