Quiz 46: Securities Regulation

Business

Corporation A was involved in merger discussions with Corporation B. During this time, Corporation A made public statements denying that any merger negotiations were taking place or that it knew of any corporate developments that would account for heavy trading activity in its stock. A class of former shareholders who sold Corporation A stock after the public denial of merger activity and the announcement of the merger some six weeks later sued Corporation A, contending it made material misrepresentations of fact in denying the merger activity. Corporation A stock increased 25 percent upon the merger announcement. Corporation A stated that at the time of its denial of merger activity it was just involved in preliminary negotiations and its actions were not material until negotiations reached an agreement in principle. Moreover, it asserted that the shareholders made no showing that they relied on the denial statement. Decide.

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Case summary: Corporation A and Corporation B were involved in merger discussions but Corp. A made a public announcement denying the fact about the merger. But after six weeks of this denial, they both came into a merger and the stock prices of "Corp. A" rose by 25 percent due to this merger. A class of former shareholders who sold the shares of Corp. A after it denied any merger with Corp. B sued Corp. A stating it made material misrepresentations of fact in denying the merger activity. "Corp. A" argued that initially, the merger agreement was in the initial stage and nothing has become substantial and thus it denied the merger activity. It also stated that the shareholders made no showing that they relied on the denial statements. Conclusion: As it is said by Corp. A that denial to merger was announced because nothing got substantial at that time and after six weeks when things were sorted as per the agreement of both the corporations, the merger took place. And there is no other intention behind this denial or misrepresentation of the same. Thus when the shareholders sue Corp A for this kind of fraud then they are wrong and are not taking this merger sportingly. Also the shareholders do not have proves that provides a reason that they sold the share after the denial of merger news was announced. Thus there is no case that goes against Corp A.

Q 2

Business Week magazine is sent to a national distributor of magazines, Curtis Circulations Co., which sells the magazines to various wholesalers, including Hudson News. Business Week publishes a column entitled "Inside Wall Street," and the evidence shows that stocks discussed favorably in the column tend to increase in value after release to the public. Business Week has a strict confidentiality policy prior to release of the magazine to the public applicable to all employees involved in production and distribution. This policy also applies to Hudson News. Gregory Savage, an employee of Hudson News, and the "top person" in the delivery room area, arranged to have the "Inside Wall Street" column faxed to his neighbor, a stockbroker named Larry Strath, prior to the close of the market on Thursday and prior to release to the public that evening. Strath traded on the information and passed it on to Joseph Falcone, who likewise traded on the basis of this information. While Falcone paid Strath $200 for a copy of the column each week, he contends that the information he received was too remote from the Business Week confidentiality policy to be actionable by the SEC. What theory do you believe the SEC pursued against Falcone? What are the elements of the theory? How would you decide this case? [United States v Falcone 257 F3d 226 (2d Cir)]

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Refer to the case United States v Falcone to answer question as below: Facts to this case • A news company had a reputation for increasing stock price when they print out favorable reviews of the companies. • The news wasn't release to public until distribution. • A stockbroker (defendant) got someone in the company to fax him the unreleased news beforehand. Case Issue The issue is whether the defendant's activity was illegal. Relevant Terms, Laws, and Cases Insider Trading - happens when an insider, person working with the company, uses information of his company to achieve an unfair advantage in an investment. Misappropriation Theory of Insider Trading - is stealing non-public information from an employer to gain an advantage in any stock. Analysis and Conclusion The Securities Exchange Commission (SEC) used the misappropriation theory of insider trading for this case. The court upheld the charges. They argued that: • Misappropriation theory relied on two factors, breach of duty of the insider to his employer, and the tipee's (person receiving the insider info) knowledge of the breach. • The insider breached his duty because there was a policy that the news cannot be distributed to the public prior to the certain time, but he faxed the news prior to delivery to the tipee. • Furthermore, the tipee was aware of the plan and paid for the faxed information. • These satisfied the evidence for misappropriation theory. Defendant is guilty of misappropriation of insider information.

Q 3

Minnesota Prostate Research Labs, Inc. (MPRL), made an initial public offering of its shares in August 1998. It stated in its prospectus that research on laboratory animals indicated that the lab may have discovered a cure for prostate cancer in humans. MPRL pointed out as well that results in animal testing did not necessarily mean that the same positive result would occur in humans. MPRL shares initially traded at $10 per share in 1999 and rose to $18 in August 2001, when the MPRL prostate cancer drug was finally approved for sale to the public. Tuttle reviewed the initial prospectus and analysts' reports on the drug and purchased 10,000 shares at $18 per share on August 18, 2001. In September of 2002, an independent study of the four leading prostate medicines indicated that MPRL's product was as effective as sugar pills in curing prostate cancer and other prostate symptoms. The price of MPRL shares plummeted to $6 per share. Tuttle is contemplating a Rule 10b-5 securities fraud classaction lawsuit against MPRL. Advise him of his chances of success in this lawsuit and any expenses that he would be exposed to other than the cost of his attorney.

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SEC Rule 10b-5 prohibits use of fraudulent or omission of material information during a sale of security. If an investor purchases a stock based on fraudulent or omissions, he may recover for damage when the stock loses value. In this case, the investor purchased a stock in a company believing that the company's drug will be a success. However, the company had pointed out the drug may not work as well on humans, the stock later drop in value due to the drug's failure. This is a disclaimer would tell the potential risk of investors on relying on the company's drug as an investment.

Q 4

following transactions in Heritage Cosmetics Co., Inc., stock took place: On January 21, Jones, the corporation's vice president of marketing, purchased 1,000 shares of stock at $25 per share. On January 24, Sylvan, a local banker and director of Heritage, purchased 500 shares of stock at $26 per share. On January 30, McCarthy, a secretary at Heritage, purchased 300 shares of stock at $26.50. On February 12, Winfried, a rich investor from New England, purchased 25,000 shares at an average price of $26 per share. At that time, Heritage had a total of 200,000 shares of stock outstanding. On June 14, Winfried sold his entire holding in Heritage at an average price of $35 per share. In a local newspaper interview, Winfried was quoted regarding his reasons for selling the stock: "I have not had the pleasure of meeting any person from Heritage, but I have the highest regard for the Heritage Company,... I sold my stock simply because the market has gone too high and in my view is due for a correction." After independently reading Winfried's prediction on the stock market, Jones, Sylvan, and McCarthy sold their shares on June 15 for $33 per share. On June 20, Heritage Co. demanded that Jones, Sylvan, McCarthy, and Winfried pay the corporation the profits made on the sale of the stock. Was the corporation correct in making such a demand on each of these people?

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Q 5

Dorozhko hacked into the corporate network of Thomson Financial on October 17, 2007 at 2:15 P.M. and gained access to IMS Health's soon-tobe- released negative earnings announcement due out at 5:00 P.M. He purchased $41,670 worth of put options. IMS shares were trading at $29.56 at the close on October 17. On October 18, 2007, IMS Health's stock price plunged at the opening of trading to $21.20 per share, on the negative news issued at 5:00 P.M. on October 17. Within six minutes, Dorozhko sold the put options for a net profit of $286,456. Did Dorozhko's "hacking and trading" violate either the traditional or misappropriation theories of "insider trading"?

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Q 6

Dale worked in the law office of Emory Stone, an attorney practicing securities law. While proofreading Mary's keying of a document relating to the merger of two computer software companies, Emory joked to her, "If I weren't so ethical, I could make a few bucks on this info. Nomac Software stock prices are going to take off when this news hits 'The Street.'" That evening, Mary told her friend Rick Needleworth, a stockbroker, what her boss had said. Needleworth bought 500 shares of Nomac Software stock the next day and sold it three days later when the news of the merger was made public. He made a profit of $3,500. Did Dale, Stone, or Needleworth violate any securities law(s) or ethical principles with respect to the profit made by Needleworth?

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Q 7

International Advertising, Inc. (IA), would like to raise $10 million in new capital to open new offices in eastern Europe. It believes it could raise the capital by selling shares of stock to its directors and executive officers as well as to its bank and a large insurance company whose home office is located near IA's headquarters. Opposition to the financing plan exists because of the trouble, time, and cost involved with registering with the SEC. Advise IA how best to proceed with the registration of the new issue of stock.

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Q 8

Dubois sold Hocking a condominium that included an option to participate in a rental pool arrangement. Hocking elected to participate in the arrangement. Under it, the rental pool's agent rented condominiums, pooled the income, and after deducting a management fee, distributed the income to the owners on a pro rata basis. Hocking brought a Rule 10b-5 fraud action against Dubois. Dubois contended that the sale of the condominium was not a security under the securities acts, so Hocking could not bring a securities suit against her. Was Dubois correct? [Hocking v Dubois, 839 F2d 290 (9th Cir)]

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Q 9

William Rubin, president of Tri-State Mining Co., sought a loan from Bankers Trust Co. To secure the loan, he pledged worthless stock in six companies and represented that the stock was worth $1.7 million. He also arranged for fictitious quotations to appear in an investment reporting service used by the bank to value the pledged securities. The bank loaned Rubin $475,000 and took the securities as pledged collateral. In a criminal action against Rubin under section 17(a) of the 1933 act, Rubin's defense was that the pledging of securities did not constitute an offer or sale of securities under the act. Was Rubin correct? [Rubin v United States, 449 US 424]

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Q 10

C. Cowdin, a director of Curtis-Wright Co., phoned Robert Gintel, a partner of Cady, Roberts Co., a stock brokerage house, and advised him that Curtis-Wright's quarterly dividend had been cut. Gintel immediately entered orders selling Curtis-Wright shares for his customers' accounts. The stock was selling at over $40 a share when the orders were executed but fell to $30 soon after the dividend cut was announced to the public. The SEC contended that the firm, Cady, Roberts Co., and Gintel violated section 10(b) of the 1934 act, Rule 10b-5, and section 17(a) of the 1933 act. Gintel and Cady, Roberts Co. disagreed. Decide. [In re Cady, Roberts Co., 40 SEC 907]

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Q 11

a January 2000 prospectus for its initial public offering of shares, Apex Oil Discovery Co. (AODC) estimated a sizable volume of oil production based on the studies of two geologists and a test well at one of its Oklahoma properties. A cautionary statement advised that the projections were only estimates based on the opinion of the two experts and a test well, and that actual production could vary significantly. Lutz bought 10,000 shares of Apex in May 2000 for $20 per share. By October 2000, 12 of its 15 drilling operations under way that year turned out to be dry holes. On October 18, 2000, AODC stock fell to $6 per share. Lutz brought a private securities civil action under SEC Rule 10b-5 against AODC, alleging that the AODC oil production estimates that induced him to buy the stock were fraudulent as evidenced by the 80 percent failure rate of its drilling operations. What defense, if any, does AODC have in this case? Decide.

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Q 12

Douglas Hansen, Leo Borrell, and Bobby Lawrence were three psychiatrists who recognized the need for an inpatient treatment facility for adolescents and children in their community. They became limited partners in building a forprofit psychiatric facility. Each had a 6.25 percent interest in the partnership. Healthcare International, Inc., the general partner with a 75 percent interest, had expertise in hospital construction, management, and operation. Hansen, Borrell, and Lawrence asserted that the managerial control of the partnership was undertaken and operated by the general partner to the exclusion of the limited partners. The doctors claimed that their interest was a security-"an investment contract"-that gave them status to file a securities suit against the general partner under the 1934 act. The general partner disagreed. Decide. [L B Hospital Ventures, Inc. v Health-care International, Inc., 894 F2d 150 (5th Cir)]

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Q 13

Texas International Speedway, Inc. (TIS), filed a registration statement and prospectus with the Securities and Exchange Commission offering a total of $4,398,900 in securities to the public. The proceeds of the sale were to be used to finance the construction of an automobile speedway. The entire issue was sold on the offering date. TIS did not meet with success, and the corporation filed a petition for bankruptcy. Huddleston and Bradley instituted a class-action suit in U.S. district court on behalf of themselves and other purchasers of TIS securities. Their complaint alleged violations of section 10(b) of the 1934 act. The plaintiffs sued most of the participants in the offering, including the accounting firm of Herman MacLean. Herman MacLean had issued an opinion concerning certain financial statements and a pro forma balance sheet that were contained in the registration statement and prospectus. The plaintiffs claimed that the defendants had engaged in a fraudulent scheme to misrepresent or conceal material facts regarding the financial condition of TIS, including the costs incurred in building the speedway. Herman MacLean contended that the case should be dismissed because section 11 of the 1933 act provides an express remedy for a misrepresentation in a registration statement, so an action under section 10(b) of the 1934 act is precluded. Decide. [Herman MacLean v Huddleston, 459 US 375]

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Q 14

Melvin J. Ford, president of International Loan Network, Inc. (ILN), promoted ILN's financial enrichment programs to ILN members and prospective members with evangelical fervor at revival-style "President's Night" gatherings. His basic philosophy was this: The movement of money creates wealth. What we believe is that if you organize people and get money moving, it can actually create wealth. One ILN program was the Maximum Consideration Program, which, somewhat like a chain letter, provided $5,000 awards to members who sold $3,000 worth of new memberships called PRAs and made a deposit on the purchases of nonresidential real estate. According to Ford, an individual purchasing $16,000 worth of PRAs could receive an award of up to $80,000 because "all of a sudden the velocity of money increases to such a point, the ability to create wealth expands to such a degree, that we could come back and give somebody an award for up to $80,000." The SEC contended that ILN was selling unregistered investment contracts in violation of the 1933 act. ILN disagreed, contending that the program never guaranteed a return and was thus not an investment contract. Decide. Could ILN have provided full disclosure to investors concerning the program in a prospectus if required by the 1933 act? [SEC v ILN, Inc., 968 F2d 1304 (DC Cir)]

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