Rehearing and Rehearing En Banc Denied July 18, 1979.
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from a judgment entered in the United States District Court for the Southern District of New York, Robert J. Ward, Judge (439 F.Supp. 945 (S.D.N.Y.1977)), in favor of defendants American Standard, Inc. ("Standard") and Blyth & Company ("Blyth"), in a securities action brought by Crane Company ("Crane") more than ten years ago. We affirm in part, reverse in part and remand.
This appeal, nine years after our decision in Crane Co. v. Westinghouse Air Brake Co., 419 F.2d 787 (2d Cir. 1969), cert. denied, 400 U.S. 822, 91 S.Ct. 41, 27 L.Ed.2d 50 (1970) ("Crane I"), and five years after our decision in Crane Co. v. American Standard, Inc., 490 F.2d 332 (2d Cir. 1973) ("Crane II"), follows the second trial on the merits in this action. Although the "Brobdingnagian procedural imbroglio," Crane II, supra, 490 F.2d at 334, which delayed this case for so long has been resolved, we are again confronted with the issue which faced us in Crane I, whether Crane has standing to bring this action under §§ 9(e) and 10(b) of the Securities Exchange Act of 1934 ("the 1934 Act"), 15 U.S.C. §§ 78i(e) and 78j(b). The district court held, contrary to our decision in Crane I, that Crane lacks standing. The district court further held that, assuming Crane does have standing, it failed to prove that the conduct of Standard and Blyth caused it any damage. It also held that it lacked jurisdiction of any pendent state law claims. Crane vigorously contests all aspects of the district court's decision. We find no error in the result on the claims based on federal securities law, but remand for further consideration of dismissal of the state law claims.
The Takeover Battle
Although we shall assume familiarity with this court's opinions in Crane I and Crane II, exposition of the issues before us requires some restatement of the facts which brought this action to its present posture.
The controversy arose from a battle between Crane and Standard for control of Westinghouse Air Brake Company ("Air Brake"). Crane began making substantial purchases of Air Brake stock in 1967. Air Brake's management informed Crane that their company was not interested in the possibility of merger with Crane. Crane, however, continued to purchase stock on the open market. Air Brake responded by raising the cumulative vote necessary to obtain representation on its board of directors. In late 1967, Blyth, Standard's investment banker, offered Standard's assistance to Air Brake in fending off Crane's takeover efforts.
On February 20, 1978, when Air brake stock was selling on the New York Stock Exchange ("NYSE") at about $36 per share, Crane filed its 14-B statements with the SEC declaring its intention to solicit proxies
Crane countered by making a tender offer of subordinated debentures with face value of $50 for each share of Air Brake stock. This offer was to expire at 5:00 p. m. on April 19, 1968. Air Brake stock rose to about $49 on April 10, shortly after the tender offer was announced. By April 18, however, the stock price had fallen to about $45.
On April 19, the final day of Crane's original offer, Air Brake stock opened at $45.25. During the course of that day, Standard, acting through Blyth, purchased 82,400 shares
Crane extended its tender offer several times, the last extension expiring on May 24, 1968. Its total holding of Air Brake stock, from the tender offer and its open market purchases, amounted to 1,480,623 shares, or 32.2% of Air Brake's outstanding stock.
Meanwhile, at a May 16 stockholders' meeting, 2,903,869 shares of Air Brake were voted in favor of the merger with Standard and 1,180,298 shares against. The affirmative vote was 602,290 shares more than the 2,301,579 shares which constituted a majority of the outstanding stock and which were needed to approve the merger. The merger became effective on June 7, 1968, at which time Crane's interest in Air Brake was converted into 740,311 shares of Standard convertible preferred stock. On June 13, under threat of an antitrust action to be brought by Standard,
Crane I and II
On April 17, 1968, Crane brought suit claiming that Air Brake had made misrepresentations in its proxy statement soliciting votes in favor of the merger. On May 6, Crane filed a second action contending that Standard and Blyth had engaged in fraud and market manipulation in violation of §§ 9, 10 and 14 of the 1934 Act (15 U.S.C. §§ 78i, 78j and 78n), Rules 10b-5 and 10b-6 (17 C.F.R. §§ 240.10b-5 and 240.10b-6) and Regulation 14A (17 C.F.R. § 240.14a-1 et seq.). These actions, both of which sought equitable relief, were consolidated and tried before Judge Sylvester J. Ryan, who dismissed the consolidated complaint.
On remand, Judge Ryan recused himself and the case was assigned to Judge Mansfield. When Judge Mansfield became a member of this court, the action was reassigned to Judge McLean. Upon his death, it was transferred to Judge Ward. Several orders of the district court, including one requiring Crane to amend its complaint and submit to trial before a jury in order to be entitled to an award of damages, were appealed to this court in 1973. We reversed that order in Crane II, supra, 490 F.2d 332, and reiterated the mandate of Crane I that "the determination of the amount of damages, if any, [was] to be made, as all other decisions in this equity action had been, by a district judge." Id., at 341.
Standing to Sue
A. Decision on Remand
The trial on remand took place before Judge Ward in April and May of 1976. Before the district court had rendered a decision, however, the Supreme Court announced
B. The Law of the Case
Crane contends that the district court violated the doctrine of "the law of the case" when it reversed the holding of Crane I that Crane had standing to bring this action. It is clear, however, that regardless of the propriety of the district court's action,
Id., at 951 (footnote omitted).
This admonition has particular force where the ruling in question involves the threshold determination of whether the plaintiff possesses a cause of action.
We conclude, after weighing these competing considerations, that we must reject in part the law of the case as set out in Crane I because our ruling that Crane possessed a cause of action for monetary damages under § 9(e), § 10(b) and Rule 10b-5 cannot be sustained in the aftermath of Piper, supra, 430 U.S. 1, 97 S.Ct. 926.
C. Section 10(b) and Rule 10b-5
In Piper, the Supreme Court held that the plaintiff, "as a defeated tender offeror, has no implied cause of action for damages under § 14(e)" of the 1934 Act. Id., at 42, 97 S.Ct., at 950. A number of factors compel the conclusion that the same result is required under § 10(b).
A comparison of the statutory provisions at issue here and in Piper suggests that Crane does not have standing. As this court previously has observed, the operative language of Rule 10b-5 and § 14(e) is substantially identical. Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341, 362 (2d Cir.), cert. denied, 414 U.S. 910, 94 S.Ct. 231, 38 L.Ed.2d 148 (1973); Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 945 (2d Cir. 1969). The primary difference is that Rule 10b-5 applies generally to activities "`in connection with the purchase or sale of any security,'" whereas § 14(e) deals specifically with tender offers. Id., at 945 n. 6. This difference suggests that we should be less willing to imply a cause of action for a defeated offeror under the general provisions of Rule 10b-5 than under § 14(e). We stated in Crane I that the addition to the 1934 Act of § 14(e) "should serve to resolve any doubts about standing in the tender offer cases . . .." 419 F.2d at 798-99. Although we were in error as to the way in which those doubts would be resolved, we adhere to our original belief that § 14(e) presented a stronger argument for standing than does Rule 10b-5.
Application of the analysis used by the Supreme Court in Piper also leads to the conclusion that Crane lacks standing under § 10(b) and Rule 10b-5. We look, as the Court did in Piper, to the statute itself to determine whether tender offerors have a cause of action for damages.
Senator Fletcher, Chairman of the Senate Committee on Banking and Currency, described the function of § 9(c) of S. 2693, which became § 10(b) of the 1934 Act, in the following terms:
78 Cong.Rec. 2271 (1934) (emphasis added). It might be suggested that the reference to activities "detrimental to the public interest" should be read to confer a private cause of action on every member of the public. Such an interpretation, however, would unjustifiably strain a provision whose authors did not expressly provide for any private cause of action. See Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S. at 729, 736, 95 S.Ct. 1917. The "public interest" is not a class of persons. It is simply a general goal which this statute, like most legislation, is meant to achieve. The phrase "proper protection of investors," however, clearly indicates "a particular class intended to be protected by the statute." This view of the purpose of § 10(b) comports with the Supreme Court's reference in Ernst & Ernst, supra, 425 U.S. at 198, 96 S.Ct. at 1383, to "the overall congressional purpose in the 1933 and 1934 Acts to protect investors against false and deceptive practices . . .."
It is clear that Crane does not come before this court as a defrauded investor seeking redress. Crane, as an investor in Air Brake, made a profit of about $10 million when it sold the Standard preferred stock which it received in the merger. Its grievance against Standard arises from actions which it contends prevented it, as a tender offeror, from acquiring control of Air Brake. In that role, Crane does not present itself to us as a member of the class intended to be protected by § 10(b) and Rule 10b-5.
Policy considerations advanced in Piper to support the denial of a cause of action under § 14(e) likewise apply in an action under § 10(b) and Rule 10b-5. First, the threat of an action for damages by a defeated offeror will not "provide significant additional protection for [investors] in general." Id., at 39-40, 97 S.Ct., at 948. The deterrent value of such actions is speculative. Furthermore, some investors "may be prejudiced because some tender offers will never be made if there is a possibility of massive damage claims. . .." Id., at 40, 97 S.Ct., at 948.
Third, any damage award entered against Standard ultimately would be borne by its stockholders, among whom are undoubtedly some former stockholders of Air Brake who received Standard stock in the merger. It would be anomalous if they, who were misled by Standard's manipulation, were to be burdened with the cost of satisfying the damages allegedly suffered by Crane as a result of that manipulation. Id., at 39, 97 S.Ct. 926.
One final factor supports our conclusion that Piper precludes a cause of action for Crane under § 10(b). In Piper, the Court said that the legislative history of § 14(e) "scarcely suggests an intent to confer highly important, new rights," id., at 30, 97 S.Ct., at 943 (emphasis added), upon tender offerors. This characterization of an action for damages as a new right strongly implies that offerors did not possess such a cause of action under prior federal law, which included § 10(b) and Rule 10b-5.
For all of the foregoing reasons, we conclude that Crane did not have standing to sue for damages under § 10(b) and Rule 10b-5.
D. Section 9(e)
Unlike § 10(b), § 9(e) establishes an express cause of action for persons injured by violations of its provisions. 15 U.S.C. § 78i(e).
The district court based its determination that Crane lacked standing under § 9(e) on the Supreme Court's discussion in Piper of the relationship of § 9 to Chris-Craft's claim under Rule 10b-6.
Although we agree that § 9, read in the light of Piper, does not provide a cause of action for Crane, we reach that conclusion by a path different from that followed by the district court. The factual circumstances present here and the legal claim advanced by Crane are not identical to those in Piper. The cause of action expressly established by § 9(e) runs in favor of both those who purchase and sell stock at a price affected by a manipulative transaction. In Piper, Chris-Craft in fact had not sold the Piper stock that it had purchased previously. Thus it was not necessary that the Court consider a seller's § 9 cause of action. Crane contended, however, and we held in Crane I, that "Standard's actions had the intended and inevitable effect of inducing Crane to become a seller within the meaning of section 9(a)(2) . . .." 419 F.2d at 794. We must determine, therefore, whether Crane's forced sale occurred "at a price which was affected by" Standard's manipulative transactions, so as to bring Crane within the scope of the protection provided by § 9(e). In light of the Supreme Court's guidance in Piper, we conclude that Crane has not alleged and could not demonstrate that it satisfied this requirement.
The Supreme Court held in Piper that because Piper had not alleged that the price it paid for Bangor Punta stock was affected by the manipulative activity, it could not invoke the protection of the Act. Although the Court's discussion dealt only with the purchase of a stock, there is nothing in the statute to suggest that, in the case of a sale, we should concern ourselves with anything other than the price actually received for the stock sold.
Crane suggests that either of two transactions might be viewed as the sale of a security within the terms of § 9(e). The first is the exchange of Air Brake common stock for Standard preferred stock; the second is Crane's sale of the Standard preferred stock on the NYSE. Because we conclude that neither of these transactions took place at a price affected by Standard's manipulation of Air Brake common stock, we need not decide which, if either, could constitute a sale for the purposes of § 9(e).
The "price" at which Crane "sold" its Air Brake common stock was established by the terms of the merger agreement between Air Brake and Standard. This agreement was publicly announced on March 4, 1968, more than one month before Standard engaged in its manipulation of Air Brake common stock. The exchange terms of the merger were not amended thereafter. Crane received 740,311 shares of Standard preferred stock in exchange for its 1,480,623 shares of Air Brake common, in accordance with the terms announced on March 4. It is clear that the price at which Crane "sold" the Air Brake stock was not in any way affected by the manipulation which occurred after the terms of the exchange had been established.
Crane similarly has not alleged or established that the price at which it later sold the Standard preferred stock was in any way affected by the manipulation. Crane sold most of that stock on the NYSE on June 13, 1968 at a price of $104.25 per share, the equivalent of $52.125 per original share of Air Brake common. This was an ordinary open-market transaction, notable only for being, as of that date, the largest single transaction (in dollar volume) in the history of the NYSE. Crane has not suggested that the manipulation of Air Brake common in April, 1968 had any effect on the price at which Standard preferred sold in June, 1968, nor does the record contain proof of such effect.
Crane's claim then is not that the prevailing price in the markets in which it bought
In the light of Piper, we must conclude that the district court was correct in dismissing Crane's § 9(e) claim.
Proof of Causation
We did not establish in Crane I a standard by which the district court was to determine the appropriate remedy for Standard's violations of § 9 and § 10(b). Although our opinion in Crane II might be read as approving a standard of "but for" causation, see Crane II, supra, 490 F.2d at 344, there are also circumstances in which proof of the materiality of a nondisclosure has been held sufficient to establish "the requisite element of causation in fact." Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472 (1972); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384-85, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Chris-Craft Industries, Inc. v. Piper Aircraft Corp., supra, 480 F.2d at 373-77; Chasins v. Smith, Barney & Co., 438 F.2d 1167, 1172 (2d Cir.1970). But see Piper, supra, 430 U.S. at 50-53, 97 S.Ct. 926 (Blackmun, J., concurring). Because of our disposition of the issue of standing, we need not decide whether the district court properly determined that Crane was not entitled to any relief on the § 9(e) and § 10(b) claims by reason of deficiency of proof of causation.
Pendent Jurisdiction of State Law Claims
The district court dismissed "any claims [Crane] may have under state law," on the ground that "[w]hen the federal claim is dismissed, the jurisdictional peg on which the state cause of action could hang, is no longer present." 439 F.Supp. at 951 n. 2. Crane argues that in so doing the court abused the discretion which it possesses to determine whether to adjudicate state claims under principles of pendent jurisdiction. We reverse the dismissal of Crane's state law claims, not because the district court abused its discretion, but rather because it failed to exercise that discretion, apparently because of a mistaken belief
The Supreme Court said in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966):
Even where substantial time and resources have been expended in the trial of an action in federal court, pendent state claims must be dismissed if it later is determined that there never existed a federal claim sufficient to invoke the jurisdiction of the federal court. Tully v. Mott Supermarkets, Inc., 540 F.2d 187 (3d Cir.1976).
Such is not the case here. Although we hold that Crane did not have a federal cause of action for damages under § 9(e) or § 10(b) of the 1934 Act, we have found nothing in Piper or elsewhere that would lead us to alter our determination in Crane I that Crane did have standing to sue for injunctive relief.
It is true that on remand after Crane I and II, Crane did not press its claim for injunctive relief, presumably because of the substantial time that had elapsed since the consummation of the merger. We believe, however, that this situation is analogous to that in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), where the Court held that the mooting of a federal constitutional claim constituted a factor affecting the discretion, not the power, of the district court to adjudicate a pendent claim.
We therefore reverse the dismissal of Crane's claims under state law and remand the matter to the district court to determine, in the exercise of its discretion, see Gibbs, supra, 383 U.S. at 726-27, 86 S.Ct. 1130, whether it should adjudicate those claims.
Crane suggests that it is entitled to an award of attorney's fees, at least through the time of our decision in Crane II, because it successfully demonstrated that Standard violated the 1934 Act. It relies on Mills, supra, 396 U.S. at 389-97, 90 S.Ct. 616, where the Supreme Court held that stockholders of a corporation who proved in a derivative and class action that the corporation had violated § 14 of the 1934 Act should be awarded attorneys' fees, even if it later were determined that no monetary recovery should be allowed.
Mills is inapposite to this action. The Court reasoned in Mills that the plaintiffs, by "vindicating the statutory policy" of "fair and informed corporate suffrage," had "rendered a substantial service to the corporation and its shareholders" and were entitled to have the expense of the litigation imposed "on the class that has benefited." Id., at 396-97, 90 S.Ct. at 627-628. Here, Crane did not sue derivatively or on behalf of shareholders of either Air Brake or Standard. Standard's manipulation of Air Brake stock did not cause injury to anyone other than Crane itself. The shareholders of Standard, who would bear the cost of an award of attorneys' fees, received no benefit from this litigation, other than the incremental benefit which arguably accrues to all participants in the securities markets whenever violations of the securities laws are uncovered. Since this case does not involve the "special circumstances" or "overriding considerations" which would justify an award of attorneys' fees, id., at 391, 90 S.Ct. 616, Crane's request is denied.
The judgment is affirmed insofar as it dismissed the claims against both Standard and Blyth under § 9(e) and § 10(b) of the 1934 Act because Crane lacked standing to sue. The judgment is reversed as to the dismissal of the state law claims and remanded for further consideration in accordance with this opinion.
This rationale applies with equal force even where, as here, the Supreme Court denied a petition for certiorari to review our first decision, since the Court remains free to consider issues decided in our original appeal should it later decide to review our ultimate disposition of the case. See City of Indianapolis v. Chase National Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941).
This testimony does not assist Crane's position on this issue. First, Evans conceded that he had no proof of this allegation. Second, he did not attempt to connect this alleged "rigged market" to the earlier manipulation of Air Brake common. Finally, even if Blyth was in fact running a rigged market in Standard preferred, it must be assumed that Crane expected to benefit from the existence of that market by its use of Blyth as its broker. Thus Crane would receive a higher, not lower, price for the stock that it sold.
Lower courts which have confronted the question since Piper have found standing under § 14(e) for a tender offeror to sue for injunctive relief. See Weeks Dredging & Contracting, Inc. v. American Dredging Co., 451 F.Supp. 468 (E.D.Pa.1978); Humana, Inc. v. American Medicorp, Inc., 445 F.Supp. 613 (S.D.N.Y.1977).
We intimate no view as to the validity of any of these claims. The district court, in exercising its discretion, should of course consider whether the plaintiff has alleged and preserved during this lengthy litigation whatever state law claims it now seeks to have decided.