Reliance Electric Company v. Emerson Electric Company/Dissent Douglas

by William O. Douglas

United States Supreme Court

404 U.S. 418

RELIANCE ELECTRIC COMPANY, Petitioner,  v.  EMERSON ELECTRIC COMPANY.

 Argued: Nov. 10, 11, 1971. --- Decided: Jan 11, 1972

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice WHITE concur, dissenting.

On June 16, 1967, Emerson Electric Co., in an attempt to wrest control from the incumbent management, acquired more than 10% of the outstanding common stock of Dodge Manufacturing Co. Dodge successfully resisted the take-over bid by means of a defensive merger with petitioner, Reliance Electric Co. Emerson then sold the shares it had accumulated, within six months of their purchase, for a profit exceeding $900,000.

Because this sale purportedly comprised two 'independent' transactions, the first of which reduced Emerson's holdings to 9.96% of the outstanding Dodge common stock, the Court today holds that the profit from the second transaction is beyond the contemplation of § 16(b) of the Securities Exchange Act. ^[1] So Emerson need not account to the corporation for these gains. In my view, this result is a mutilation of the Act, contrary to its broad remedial purpose, inconsistent with the flexibility required in the interpretation of securities legislation, and not required by the language of the statute itself.

* Section 16(b) is a 'prophylactic' rule, Blau v. Lehman, 368 U.S. 403, 413, 82 S.Ct. 451, 556, 7 L.Ed.2d 403, whose wholesome purpose is to control the insiders whose access to confidential information gives them unfair advantage in the trading of their corporation's securities. ^[2]

The congressional investigations which led to the enactment of the Securities Exchange Act unearthed convincing evidence that disregard by corporate insiders of their fiduciary positions was widespread and pervasive. ^[3] Indeed,

'the flagrant betrayal of their fiduciary duties by directors and officers of corporations who used their positions of trust and the confidential information which came to them in such positions, to aid them in their market activities,' was reported by the Senate subcommittee charged with the investigation to be '(a)mong the most vicious practices unearthed at the hearings.' S.Rep.No. 1455, 73d Cong., 2d Sess., 55 (1934). The subcommittee did not limit its attack to directors and officers.

'Closely allied to this type of abuse was the unscrupulous employment of inside information by large stockholders who, while not directors and officers, exercised sufficient control over the destinies of their companies to enable them to acquire and profit by information not available to others.' Ibid.

Despite its flagrantly inequitable character, the most respected pillars of the business and financial communities considered windfall profits from 'surething' speculation in their own company's stock to be one of the usual emoluments of their position. Cook & Feldman, Insider Trading Under the Securities Eschange Act, 66 Harv.L.Rev. 385, 386 (1953); 10 SEC Ann.Rep. 50 (1944). These abuses were perpetrated by such ostensibly reliable men and institutions as Richard Whitney, President of the New York Stock Exchange, ^[4] Albert H. Wiggin and the Chase National Bank, of which he was the chief executive officer, ^[5] and Charles E. Mitchell and the National City Bank, of which he was Chairman of the Board. ^[6]

Section 16(b) was drafted to combat these 'predatory operations,' S.Rep.No. 1455, supra, at 68, by removing all possibility of profit from those short-swing insider trades occurring within the statutory period of six months. ^[7] The statute is written broadly, and the liability it imposes is strict. Profits are forfeit without proof of an insider's intent to gain from inside information, and without proof that the insider was even privy to such information. ^[8] Feder v. Martin Marietta Corp., 406 F.2d 260, 262 (CA2).

Today, however, in the guise of an 'objective' approach, the Court undermines the statute. By the simple expedient of dividing what would ordinarily be a single transaction into two parts-both of which could be performed on the same day, so far as it appears from the Court's opinion-a more-than-10% owner may reap windfall profits on 10% of his corporation's outstanding stock. This result, "plainly at variance with the policy of the legislation as a whole," United States v. American Trucking Assns., 310 U.S. 534, 543, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345, is said to be required because Emerson, owning only 9.96%, was not a 'beneficial owner' of more than 10% within the meaning of § 16(b) 'at the time of' the disposition of this block of Dodge stock.

If § 16(b) is to have the 'optimum prophylactic effect' which its architects intended, insiders must not be permitted so easily to circumvent its broad mandate. We should hold that there was only one sale-a plan of distribution conceived 'at the time' Emerson owned 13.2% of the Dodge stock, and implemented within six months of a matching purchase. Moreover, in the spirit of the Act we should presume that any such 'split-sale' by a more-than-10% owner was part of a single plan of disposition for purposes of § 16(b) liability.

This construction of 'the sequence of relevant transactions,' Bershad v. McDonough, 428 F.2d 693, 697 (CA7), is not foreclosed by any language in the statute. The statutory definitions of such terms as 'purchase,' 'sale,' 'beneficial owner,' 'insider,' and 'at the time of' are not, as one might infer from the Court's opinion, objectively defined words with precise meanings.

'Whatever the terms 'purchase' and 'sale' may mean in other contexts,' they should be construed in a manner which will effectuate the purposes of the specific section of the (Securities Exchange) Act in which they are used. SEC v. National Securities, Inc., 393 U.S. 453, 467, 89 S.Ct. 564, 572, 21 L.Ed.2d 668.' Id., at 696.

Mr. Justice Stewart, while on the Court of Appeals, explained the manner appropriate for the construction of the statutory definitions in the context of § 16(b):

'Every transaction which can reasonably be defined as a purchase will be so defined, if the transaction is of a kind which can possibly lend itself to the speculation encompassed by Section 16(b).' Ferraiolo v. Newman, 259 F.2d 342, 345 (CA6).

Applying this salutary approach toward the statutory definitions, the courts have reasoned that, because of the opportunities for abuse inhering in his position, a director must account both for purchases made shortly before his appointment, Adler v. Klawans, 267 F.2d 840 (CA2), and for sales made shortly after his resignation, Feder v. Martin Marietta Corp., supra, 'Options,' which played such a large role in the manipulative practices disclosed during the 1930's, ^[9] are not ordinarily thought to be 'purchases' or 'sales' of the underlying commodity; yet, because of the opportunity for abuse inherent in the device, courts have held that an option can be a 'sale,' when granted, within the meaning of § 16(b). Bershad v. McDonough, supra. But, in order to bring the underlying transaction within the six-month limitation of § 16(b), an option was also held to be a 'purchase' when exercised. Booth v. Varian Associates, 334 F.2d 1 (CA1). Similarly, where there was an opportunity for the abuse of inside information, a conversion of debentures into common stock was held to be a 'sale'; Park & Tilford v. Schulte, 160 F.2d 984 (CA2); but where there was no such opportunity, a similar conversion was held not to be Blau v. Lamb, 363 F.2d 507 (CA2).

The common thread running through the decisions is that whether we approach the problem of this case as a question of 'beneficial ownership' at the time of the second transaction, or as a question whether the two transactions were one 'sale,' it 'is not in any event primarily a semantic one, but must be resolved in the light of the legislative purpose-to curb short swing speculation by insiders.' Ferraiolo v. Newman, supra, 259 F.2d, at 344.

Until today, the federal courts have been almost universally faithful to this philosophy, 'even departing where necessary from the literal statutory language.' Feder v. Martin Marietta Corp., supra, 406 F.2d, at 262. Thus, a tender offer, although it may justifiably be described as a series of discrete purchases, has been treated as a single purchase. Abrams v. Occidental Petroleum, 323 F.Supp. 570, 579 (SDNY), rev'd on other grounds, 450 F.2d 157 (CA2). And, in order to prevent a construction of the statute whereby

'it would be possible for a person to purchase a large block of stock, sell it out until his ownership was reduced to less than 10%, and then repeat the process, ad infinitum,'

the phrase 'at the time of the purchase and sale,' on which the Court places such heavy reliance, was defined to mean 'simultaneously with' purchase, and 'just prior to' sale. Stella v. Graham-Paige Motors, 104 F.Supp. 957, 959 (SDNY). As one commentator noted, this holding

'necessitates a logical inconsistency insofar as the phrase 'at the time of purchase and sale' is treated as meaning the moment after purchase and the moment before sale.' Recent Developments, 57 Col.L.Rev. 287, 289.

Yet, as in the present case, 'the discrepancy seems slight in view of the broader statutory policies involved.' Ibid.

Thus, should the broadly remedial statutory purpose of § 16(b) require it, the literal language of the statute would not preclude an analysis in which the two transactions herein at issue are treated as part of a single 'sale.'

The potential for abuse of inside information in the present case is self-evident. Equally obvious is the fact that the modern-day insider is no less prone than his counterpart of a generation ago to succumb to the lure of insider trading where windfall profits are in the offing. Indeed, in a survey of 'reputable' businessmen, 42% of those responding indicated they would themselves trade on inside information, and 61% believed that the 'average' executive would do likewise. ^[10] Thus, it would appear both that § 16(b) was directed at such conduct as is herein at issue and that the protection § 16(b) affords is as necessary today as it was when the statute was enacted.

Despite the fact that the decision below strikes at the vitals of the statute, the Court says it must be affirmed because to treat 'two sales as one upon proof of a pre-existing intent by the seller' detracts from the 'mechanical quality' of the statute and is 'scarcely in harmony with the congressional design of predicating liability upon an 'objective measure of proof." Ante, at 425.

This 'mechanical quality,' however, is illusory.

'There is no rule so 'objective' ('automatic' would be a better word) that it does not require some mental effort in applying it on the part of the person or persons entrusted by law with its application.' Blau v. Lamb, supra, 363 F.2d, at 520.

Thus, the deterrent value of § 16(b) depends not so much on its vaunted 'objectivity' as on its 'thoroughgoing' qualities.

'We must suppose that the statute was intended to be thoroughgoing, to squeeze all possible profits out of stock transactions, and thus to establish a standard so high as to prevent any conflict between the selfish interest of a fiduciary officer, director, or stockholder and the faithful performance of his duty.' Smolowe v. Delendo Corp., 136 F.2d 231, 239 (CA2).

Insiders have come to recognize that 'in order not to defeat (§ 16(b)'s) avowed objective,' federal courts will resolve 'all doubts and ambiguities against insiders.' Blau v. Oppenheim, D.C., 250 F.Supp. 881, 884-885.

Moreover, courts have not shirked this responsibility simply because, as here, such a resolution may require a factual inquiry. In Blau v. Lehman, supra, this Court said that on an appropriate factual showing, an investment banking firm might be forced to disgorge profits made from short-swing trades in the stock of a corporation on whose board a partner of the firm was 'deputized' to sit. Id., 368 U.S., at 410, 82 S.Ct., at 455, 7 L.Ed.2d 403. In Colby v. Klune, 178 F.2d 872 (CA2), cited by the majority, the court permitted a factual inquiry into the possibility that an individual might be a 'de facto' officer or director, although not formally labeled as such. Virtually all courts faced with § 16(b) problems now inquire into the opportunity for abuse inherent in a particular type of transaction, in order to see if applying the statute would serve its purposes. See, e.g., Bershad v. McDonough, supra; Blau v. Max Factor & Co., 342 F.2d 304 (CA9); Booth v. Varian Associates, supra; Ferraiolo v. Newman, supra. And, even under the narrow approach of the majority, I presume it would still be open, in cases like this one, to inquire whether the ostensibly separate sales are 'legally tied'. ^[11] It follows that the necessity of a factual inquiry is no bar to the application of the statute to the present case.

It is beyond question, of course, that a prime concern of the statute was that a requirement of positive proof of an insider's 'intent' would render the statute ineffective. Insofar as the District Court's approach appears to place the burden on the plaintiff to demonstrate the existence of a 'plan of distribution,' it is justifiably open to criticism. The broad sweep of § 16(b) requires that a minimal burden be placed on putative plaintiffs.

But this goal-elimination of proof problems-is subsidiary to the statute's main aim-curbing insider speculation. Whatever 'mechanical quality' the statute possesses, it was intended to ease the plaintiff's burden, not to insulate the insider's profits.

Thus, we should not conclude, as does the majority, that there is no enforceable way to combat the potential for sharp practices which inheres in the 'splitsale' scheme.

'(T)he 'objective' or 'rule of thumb' approach need not compel a court to wink at the substantial effects of a transaction which is rife with potential sharp practices in order to preserve the easy application of the short-swing provisions under Section 16(b). Certainly the interest of simple application of the prohibitions of Section 16(b) does not carry so far as to facilitate evasion of that provision's function by formalistic devices.' Bershad v. McDonough, supra, 428 F.2d, at 697 n. 5.

A series of sales, spaced close together, is more than likely part of a single plan of disposition. Plain common sense would indicate that Emerson's conduct in the present case had probably been planned, even if there were no confirmation in the form of an admission. It is statistically probable that any series of sales made by a benefical owner of more than 10%, within six months, in which he disposes of a major part of his holdings, would be similarly connected.

We, therefore, should construe the statute as allowing a rebuttable presumption that any such series of dispositive transactions will be deemed to be part of a single plan of disposition, and will be treated as a single 'sale' for the purposes of § 16(b). ^[12] Because the burden would be on the defendant, not the plaintiff, such a rule would operate with virtually the same less-than-perfectly automatic efficiency that the statute now does, and it would comport far more closely with the statute's broad, remedial sweep than does the approach taken by the Court.

Such a rule would not, moreover, import questions of 'intent' into the statutory scheme. Any factual inquiry would involve only on objective analysis of the circumstances of the various dispositions in the series, applying the 'various tests' established by the cases 'to determine whether a transaction, objectively defined, falls within or without the terms of the statute.' Ante, at 424, n. 4.

Only if a beneficial owner carried an affirmative burden of proof-that his series of dispositive transactions was not of a type that afforded him an opportunity for speculative abuse of his position as an insider-should we say that he was not such a beneficial owner 'at the time of . . . sale.' ^[13]

The Court suggests two additional factors militating against Emerson's liability under § 16(b). First, the Court implies that it is contrary to the SEC's own rules. This argument rests on the power given to the SEC by § 16(b) to exempt from its scope those transactions that are 'not comprehended within the purpose' of the section. Pursuant to this authority, the SEC has promulgated Rule 16a-10, providing that transactions not required to be reported under § 16(a) are exempt from § 16(b) as well.

The SEC's reporting requirements are contained in 'Form 4.' Until recently, this Form required insiders-officers, directors, and more-than-10% owners-only to report transactions occurring in a calendar month in which they met the formal requirements to be denominated such an insider. Emerson sold down to 9.96% in August, then sold out in September. Presumably, it did not have to report the September sale on Form 4, and thus, by operation of Rule 16a 10, the September sale is argued to be exempt from the operations of § 16(b) as well.

Inasmuch as the SEC's power to promulgate such a rule is not 'a matter solely within the expertise of the SEC and therefore beyond the scope of judicial review,' Greene v. Dietz, 247 F.2d 689, 692 (CA2), this argument loses substantially all its force after Feder v. Martin Marietta Corp., supra. There, the court held, in the face of the identical argument that Rule 16a-10 was invalid, insofar as it operated through Form 4 to exempt transactions by ex-directors from liability under § 16(b). The court reasoned that the limitation of the reporting requirement to the calendar month in which a transaction occurred was 'an arbitrary . . . (and) unnecessary loophole in the effective operation of the statutory scheme,' id., 406 F.2d, at 269, because it required reporting of some transactions 30 days after an ex-director's resignation, but insulated others taking place the very next day.

Form 4 did, however, extend § 16(b) liability to at least some transactions occurring after resignation.

'Therefore, inasmuch as Form 4, a valid exercise of the SEC's power, has already extended § 16(b) to cover, in part, an ex-director's activities, a less arbitrarily defined reporting requirement for ex-directors is but a logical extension of § 16(b) coverage, would be a coverage in line with the congressional aims, and would afford greater assurance that the lawmakers' intent will be effectuated.' Ibid. ^[14]

This analysis is equally applicable to the reporting requirements of ex-10% owners.

Second, the Court analogizes Emerson's 'plan' to a sale 'conceived' during the six-month period but not made until after the expiration of the statutory limitation. The Court incorrectly assumes that such a sale could not fall within § 16(b). If the 'conception' were sufficiently concrete to be construed as a 'contract to sell,' or an 'option,' there would indeed be liability. Cf. Bershad v. McDonough, supra. In any event, the analogy fails because the purposes of the six-month rule are different from the purpose of the 10% rule.

The six-month limitation is based on Congress' estimation that beyond this time period, normal market fluctuations sufficiently deter attempts to trade on inside information. Blau v. Max Factor, & Co., supra, 342 F.2d, at 308. Thus, it is consistent with the statutory scheme to permit an insider to 'plan' a sale within the six-month period that will not take place until six months have passed from a matching purchase.

But the 10% rule is based upon a conclusive statutory presumption that ownership of this quantity of stock suffices to provide access to inside information. Newmark v. RKO General, Inc., 425 F.2d 348 (CA2). The rationale of the six-month rule implies that such information will be presumed to be useful during that length of time. It follows that all sales by a more-than-10% owner within the six-month period carry the presumption of a taint, even if a prior transaction within the period has reduced the beneficial ownership to 10% or below.

In sum, neither the statutory language nor the purposes articulated by the majority justify the result reached today. Rather than deprive § 16(b) of vitality in the course of a vain search for a nonexistent purity of operation, we should reverse the judgment of the Court of Appeals and remand the case for further proceedings.

Notes

1. 15 U.S.C. § 78p(b):
2. 'Next comes the everlasting problem of protecting the fellow on the outside from the insider . . . That is, the problem of protecting the stockholder-and every fellow who buys into the market is a stockholder-who does not know as much about the company as the fellow on the inside. . . . (T) he poor little fellow does not know what he is getting into, and it is just as important in preventing unwarranted and destructive speculation, to have the fellow on the outside protected from the fellow on the inside who is an officer or director of the corporation or a pool with inside information, as it is not to let the little fellow buy too much stock by setting the margins too low.' Hearings on H.R. 7852 and H.R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 82 (1934) (testimony of Thomas Corcoran).
3. One particularly glaring example concerned two brothers whose ownership of a little over 10% of a company's stock gave them a controlling interest. Just before the company voted to omit a dividend the brothers disposed of their holdings for about $16,000,000. When news of the dividend omission became public a short time later, they repurchased an equivalent amount of stock for about $7,000,000, showing a profit of some $9,000,000 on the short-swing deal. S.Rep.No.792, 73d Cong., 2d Sess., 9 (1934).
4. See SEC, Report on Investigation in the Matter of Richard Whitney Pursuant to Section 21(a) of the Securities Exchange Act of 1934 (Nov. 1, 1938).
5. See Pecora, supra, n. 3, at 131-188.
6. Id., at 70-130.
7. The six-month period is, as Mr. Corcoran said during the hearings on the bill, a 'crude rule of thumb,' Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency pursuant to S.Res. 84, 56, and 97, 73d Cong., 1st and 2d Sess., pt. 15, p. 6557. It represents a balance struck between the need to deter short-swings based on inside information and a desire to avoid unduly inhibiting long-term corporate investment. S.Rep.No. 792, 73d Cong., 2d Sess., 6. Six months was hit upon, presumably, on the view that 'where the insider is obliged to hold the original security . . . for longer than six months . . . market fluctuations are likely to wipe out his profits.' Comment, 117 U.Pa.L.Rev. 1034, 1054 (1969).
8. 'This approach maximized the ability of the rule to eradicate speculative abuses by reducing difficulties in proof. Such arbitrary and sweeping coverage was deemed necessary to insure the optimum prophylactic effect.' Bershad v. McDonough, 428 F.2d 693, 696 (CA7).
9. See Twentieth Century Fund, Stock Market Control 114-118 (1934).
10. Baumhart, How Ethical Are Businessmen?, Harv.Bus.Rev., July-Aug. 1961, p. 6, at 16. The survey had posed the following hypothetical:
11. Such an inquiry might well be extensive. The following commentary, aimed at the Court of Appeals decision below, applies with equal force to the majority's approach:
12. Such a presumption is not a novel suggestion in the interpretation of securities legislation. The Securities Act of 1933, 48 Stat. 74, as amended, 15 U.S.C. § 77a et seq., for example, requires that public securities offerings be registered with the SEC. § 5, 15 U.S.C. § 77e. But registration is not required of stock sold in a so-called 'private placement.' § 4(2), 15 U.S.C. § 77d(2). The purchaser of such stock, however, cannot avoid the registration requirements when he resells it unless his original purchase was not made 'with a view to . . . distribution.' § 2(11), 15 U.S.C. § 77b(11). The difficulties inherent in determining this elusive 'view,' see 1 L. Loss,
13. It is conceded that Emerson could not meet such a burden in the present case. In general, an insider could perhaps defeat the presumption of a plan by showing 'changed circumstances' similar to those required to avoid registration requirements under the private offering exemption of the 1933 Act. See 1 Loss, Securities Regulation, supra, at 665-673; 4 id., at 2646-2654 (1969).
14. In response to the Feder case, the SEC amended its rules to require disclosure of all transactions by directors and officers within six months prior to their appointment and for six months after their resignations. Rule 16a-1, 17 CFR § 240.16a 1(d), (e) (as amended, Sept. 30, 1969). Thus, the restrictive reporting requirements relied upon by the majority apply only to beneficial owners, itself an arbitrary distinction.