Greenfield v. Heublein, Inc.

OPINION OF THE COURT ALDISERT, Chief Judge. This appeal presents two principal questions for our consideration: (1) when does a corporation, the target of both friendly and hostile takeover activity, have a duty to disclose publicly the substance of its discussions with the suitor corporations; and (2) if the target makes a public statement, when is that statement materially misleading and under what circumstances must such a statement, if correct when issued, be updated? Here, Bruce H. Greenfield, both individually and as representative of a class of similarly situated investors, sued Heublein, Inc. (hereinafter referred to as “Heublein”), R.J. Reynolds Industries, Inc., and R.J. Reynolds Tobacco Company (hereinafter referred to jointly as “Reynolds”), claiming that they violated the federal securities laws by failing to disclose properly information related to certain merger and anti-takeover negotiations. The district court granted defendants’ motion for summary judgment, 575 F.Supp. 1325, and we affirm. I. Beginning in mid-1981, Heublein, Inc. came to be regarded as an attractive target for a corporate takeover. One suitor, the General Cinema Corporation, pursued an aggressive approach to acquisition. It began making large, open market purchases of Heublein stock and by February 1982 owned 2.1 million shares, or about 10% of the then outstanding shares. By the end of May 1982, General Cinema’s stake in Heublein had increased to 18.9%. At this point, General Cinema suspended open market purchases of Heublein stock. Although General Cinema, in its Schedule 13D filing with the Securities and Exchange Commission, described these purchases as “for investment only,” Heublein regarded this activity as part of a hostile takeover attempt and responded accordingly. Early in 1982, Heublein established a high level executive strategy group to look into ways of defusing the General Cinema moves. The members of the group included Heublein President and Chief Executive Officer, Hicks Waldron, Chairman, Stuart Watson, and General Counsel, George Caspar. By early 1982, Reynolds also became interested in acquiring Heublein. After observing the increased open market purchases by General Cinema, Reynolds began to investigate Heublein’s corporate position more seriously and decided that, while Heublein was an attractive target, Reynolds could not afford to get into a bidding war and did not want to take any action that Heublein might consider hostile. Reynolds, thus, assumed the position of the white knight, waiting in the wings, ready to rescue fair Heublein from the clutches of General Cinema. July 1982 became the decisive month. For several months Heublein had been trying to reach an agreement with General Cinema to avert an open market buy-out. Although some progress had been made, on July 8 General Cinema altered its bargaining position and issued Heublein a series of “non-negotiable” demands. Waldron and Watson of Heublein considered the demands unacceptable and responded by setting up a confidential meeting with J. Paul Sticht, Chairman of Reynolds, for July 9. At this meeting, Waldron and Watson described their problems with General Cinema, stated their desire to have Heublein remain an independent company, and inquired whether they might expect any hostile action by Reynolds. Sticht confirmed that Reynolds would make no adverse moves against Heublein and went on to describe in some detail both Reynolds’ management philosophy and corporate structure. The parties also discussed how the two companies could be combined and how Heublein’s upper management personnel could be integrated into Reynolds’ organization. This meeting can be fairly described as a preliminary merger discussion and — 754 — no formal understanding or agreement was reached. On July 14 General Cinema told Heublein that it was considering selling one of its assets, a Florida television station, valued at approximately $150,000,000. Heublein, recognizing that a large influx of capital would give General Cinema the opportunity to resume large scale open market purchases of its stock, did not view this as good news. Also on July 14, there was a dramatic increase in trading activity in Heublein’s stock on the New York Stock Exchange (NYSE) as well as a moderate rise in price.1 Because of the volume/price increase, Patrick Conneally of the NYSE contacted Caspar at Heublein and asked for a “no corporate development” statement. It is standard procedure for the NYSE to request such statements when the activity of a listed stock changes significantly indicating that some investors may be buying or selling large numbers of shares based on information not generally known to the public at large. After consulting with several other Heublein executives, Caspar issued the following statement, which was reported by Dow Jones after the close of trading on July 14th: A spokesman for Heublein, Inc. said the Company was aware of no reason that would explain the activity in its stock in trading on the NYSE today. Because of their increased concern over the actions of General Cinema, Waldron and Watson quickly organized another meeting with Sticht for the evening of July 15. Although this meeting covered much of the same territory as the July 9 meeting, the parties also discussed the July 14 public statement and the recent developments in the General Cinema situation. Heublein still believed that it could still negotiate an amicable agreement with General Cinema. On July 23, however, General Cinema, impatient with the progress of the Heublein talks, reiterated its “non-negotiable” demands for what would constitute an acceptable agreement and openly threatened to resume its open market purchases. Heublein considered this turn of events fatal to the discussions and, sensing the seriousness of the threat, called upon its white knight for rescue. While many merger details had been discussed with Reynolds, price had never been mentioned. Therefore, at the direction of the respective corporate executives, the investment bankers for Reynolds and Heublein met on July 26 to discuss the per share purchase price. No agreement was reached. On the 27th, disappointed at the failure of the previous day’s bankers meeting, Waldron and Watson met directly with Sticht and Joseph Albey, Reynolds’ Vice Chairman. Late in the afternoon they agreed on a sale price of $60.00 per share. On July 28 the NYSE again called Caspar to request that Heublein issue a “no corporate development” statement. Caspar responded that Heublein could not issue the statement, explained why, and requested that trading on Heublein stock be suspended. With the issuance of a public statement by Heublein at 1:24 p.m., trading on its stock was halted.2 On July 29 the merger was approved by the boards of both Heublein and Reynolds and was publicly announced. Bruce Greenfield owned some 400 shares of Heublein stock since 1977. He was generally aware of the hostile takeover action by General Cinema and watched closely the increased activity, and rises in price, of Heublein stock during July 1982. He was aware of the “no corporate development” statement issued on July 14 and, on the basis of this information and his own knowledge, believed that Heublein’s stock would be fully priced at $45.25. On July 26 he placed a “good till cancelled” order to sell his Heublein stock should it reach this price. On July 27 it reached $45.25 and — 755 — Greenfield’s stock was sold. On the next day, trading was suspended and on the 29th the merger was approved and announced. Greenfield filed suit claiming that in issuing and in failing to update the July 14 statement Heublein had illegally withheld material information concerning its takeover discussions with both General Cinema and Reynolds.3 The complaint alleged violations of §§ 10(b) and 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) and 78n(e), Rule 10b-5, 17 C.F.R. § 240.10b-5 (1983),4 as well as several provisions of state law. Following discovery, the district court denied plaintiff’s motion to amend his complaint, and, taking into account all of the arguments raised therein, granted defendants summary judgment on all federal counts and dismissed the pendent state law claims.5 Greenfield appealed. II. We will affirm the grant of summary judgment if there are no disputed issues of material fact and if the movant is entitled to judgment as a matter of law. Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 978-79 (3d Cir.1981). Greenfield argues that summary judgment was error here because the district court used the wrong legal standard to determine whether an agreement in principle to merge had been reached and, if the correct principle were applied, a factual dispute as to the intent of the parties would be present. Greenfield also argues that, as a matter of law, the July 14 statement was either materially misleading when issued or became so thereafter and Heublein failed to correct it. Therefore, the resolution of this appeal turns on the scope and character of a corporation’s duty to disclose information to the investing public. Our analysis will follow two steps: (1) when does a duty to disclose arise in the context of merger/anti-takeover discussions, see Staffin v. Greenberg, 672 F.2d 1196 (3d Cir. 1982); and (2) when a voluntary public statement is made, under what circum — 756 — stances will it be materially misleading when issued or become so on the basis of subsequent events, see Securities and Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir.1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). III. Rule 10b-5 and § 10(b) of the Act make it unlawful to fail to disclose material information in connection with the purchase or sale of securities. Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980); Securities and Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir.1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). Similarly, § 14(e) of the Act requires that statements made in connection with proxy solicitations and tender offers set forth all material facts. Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). Such disclosures are required to insure that all investors have similar relevant information upon which to base investment decisions and to protect the basic integrity and fairness of the exchange markets. Rochelle v. Marine Midland Grace Trust Co., 535 F.2d 523 (9th Cir.1976). If a corporation is not trading in its securities and is not otherwise under a duty to disclose material corporate information, but it voluntarily chooses to make a public statement, if that statement is “reasonably calculated to influence the investing public ...” the corporation has a duty to disclose sufficient information so that the statement made is not “false or misleading or ... so incomplete as to mislead____” Texas Gulf Sulphur, 401 F.2d at 862. With specific reference to merger discussions, we have held that, so long as they are preliminary, no duty to disclose arises. Staffin, 672 F.2d at 1205-07. We reasoned that because disclosure of such tentative discussions may itself be misleading to shareholders, preliminary merger discussions are immaterial as a matter of law. Id. at 1206; see also Susquehanna Corp. v. Pan American Sulphur Corp., 423 F.2d 1075, 1084-85 (5th Cir.1970). We recognized, however, that as merger discussions progress, the need to protect shareholders from the potentially misleading disclosure gives way to the right of the shareholders to have notice of corporate developments important to their investment decisions. Thus, we further held that “[w]here an agreement in principle [to merge] has been reached a duty to disclose does exist.” Staffin, 672 F.2d at 1207. A. With respect to the Reynolds negotiations, the court below held, as a matter of law, that no agreement in principle to merge was reached, and thus no duty to disclose arose, until sometime after Greenfield sold his stock on July 27. The court stated: While an “agreement in principle” may exist before all of the details of a merger have been negotiated ... it is clear that agreement on the fundamental terms of the merger must be reached before the merger negotiations become a material corporate development that must be disclosed to the investing public. Without fundamental agreement on the price and structure of a merger, the merger is simply too tentative to give rise to a duty of disclosure. Memorandum opinion at 25, reprinted in app. at 1489a (emphasis added). As we read the district court’s opinion, it stated that an agreement in principle requires agreement on the fundamental terms of the merger. The court then applied this formulation and determined that, in the case before it, an agreement in principle had not been reached until July 27 because the parties had not yet agreed on the price and structure, terms fundamental to this proposed merger. We find no error under the circumstances of this ease. Merger discussions arise in a wide variety of circumstances and the standard used to determine when disclosure of these is required must be both flexible and specific. Here the appellant takes issue with the — 757 — district court’s reliance on the price and structure factors and urges that we adopt a less rigid “intent of the parties to merge” standard. We find an intent standard inappropriate. Such a standard would leave both courts and corporations with insufficient guidance to determine when disclosure of merger negotiations should be made. This uncertainty, coupled with the possibility of substantial liability for tardy disclosure, would likely result in corporations issuing early public statements announcing the details of all merger talks. Not only would this have a disruptive effect on the stock markets, but, considering the delicate nature of most merger discussions, might seriously inhibit such acquisitive ventures. Under the facts of the present case, it was more appropriate for the court below to determine that an agreement in principle to merge had been reached when the parties reached agreement on “price and structure.” Although it is difficult to draw a bright line definition that will apply to all cases, these two factors are typically critical aspects of any merger. Agreement as to price and structure provides concrete evidence of a mature understanding between the negotiating corporations. They constitute a useable and definite measure for determining when disclosures need be made. Finally, with both price and structure agreed to, there is only a minimal chance that a public announcement would quash the deal or that the investing public would be misled as to likely corporate activity. Here, most of the structural details for integrating both the Heublein product line and management team into the Reynolds corporate body had been worked out by the middle of July. But price was not discussed in detail, nor agreed to, until later. Therefore, we conclude that, because Reynolds and Heublein did not agree on a merger price until the evening of July 27, it was not error for the district court to hold that, as a matter of law, no duty to disclose the substance of those negotiations arose prior to that time. B. The discussions between Heublein and General Cinema cast a slightly different shadow. The goal of those discussions was not to arrive at an agreement to merge but rather to halt a hostile, open market takeover. Further, the result of the talks was not an agreement but, at best, a stalemate. In terms of the duty to disclose, however, the differences between Heublein’s discussions with General Cinema and those with Reynolds are more of form than legal substance. As with the Heublein-Reynolds preliminary merger negotiations, the HeubleinGeneral Cinema discussions were still being seriously pursued through most of July, at least by Heublein. As its talks with Reynolds made clear, Heublein still thought that it could deflate General Cinema’s hostile takeover actions and come to some agreement that would assure the continued independence of Heublein. This was true despite the fact that General Cinema had, on July 8, issued “non-negotiable” demands and, on July 14, expressed its intent to sell the Florida television station. While these elements troubled Heublein and caused it to accelerate its parallel negotiations with Reynolds, it was not until July 23, when General Cinema reiterated its pri- or statements and threatened to resume open market purchases of Heublein stock, that Heublein realized that further talks would be futile. Therefore, until July 23, the HeubleinGeneral Cinema “anti-takeover” discussions were alive, if falteringly so. They were, however, clearly “preliminary” as no consensus “on the fundamental terms” of any agreement between the parties had been reached. Any disclosure up to this point would have been based on facts that were subject to change at any time. As the situation evolved, successive, possibly cancelling, announcements might have been required. This would have tended to confuse and mislead, rather than enlighten, the investing public. See Staffin, 672 F. 2d at 1206-07 (citing the American Stock — 758 — Exchange Manual at 104). Therefore, by-analogy to the preliminary merger situation, we hold that Heublein was under no duty to disclose the substance- of its General Cinema talks prior to July 23. On July 23, with General Cinema taking an increasingly hostile stand, Heublein abandoned all hope of reaching an agreement. Appellant urges that we characterize this abandonment as the negative equivalent of an agreement in principle to merge and, thereby, hold that, as of July 23, Heublein was under a duty to disclose the status of its talks with General Cinema. Appellant does not cite, nor does our research disclose, any case in support of this novel theory. On the facts of this case, there are several reasons why we choose not to be the first court to create such a duty. Failure to agree is not the negative equivalent of an agreement in principle. If parties reach an agreement in principle, they formally change their relative positions; if they fail to reach such an agreement, they are simply left in the same positions they would have been had no negotiations taken place. Thus, while an agreement in principle to merge, as a matter of law, constitutes a material corporate development requiring public disclosure, the failure to agree may well constitute no development at all, only, at best, a foregone opportunity. Such was the case here. Both before the negotiations began and after they were abandoned, General Cinema owned a substantial amount (nearly 20% by June 1982) of Heublein’s outstanding stock and was, at least implicitly, in a position to increase that stake through continued open market purchases. Both before and after, Heublein considered these purchases to represent hostile action and was pursuing strategies designed to block General Cinema’s takeover activity. Therefore, under the facts of this case, the breakdown of the Heublein-General Cinema talks on July 23 did not materially change the relative positions of either corporation and, as a matter of law, was not a material corporate development giving rise to a duty to disclose. IV. Although a corporation may be under no duty to disclose certain inside information, if it voluntarily chooses to make a public statement that is reasonably calculated to influence the investing public, such a statement may not be “false or misleading or ... so incomplete as to mislead ____” Securities and Exchange Commission v. Texas Gulf Sulphur Co., 401 F.2d 833, 862 (2d Cir.1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). Further, if a corporation voluntarily makes a public statement that is correct when issued, it has a duty to update, that statement if it becomes materially misleading in light of subsequent events. Sharp v. Coopers & Lybrand, 83 F.R.D. 343, 346-47 (E.D.Pa.1979). Appellant argues: (1) that Heublein’s July 14 statement, issued to the NYSE, was materially misleading when issued; and (2) that even presuming it was not materially misleading when issued, it became so in light of subsequent events and was never corrected. A. As noted earlier, based on unusually high trading activity in Heublein’s stock on July 14, the NYSE requested, and Heu-blein’s General Counsel, after checking with several other executives, issued, the following “no corporate development” statement: A spokesman for Heublein, Inc. said the Company was aware of no reason that would explain the activity in its stock in trading on the NYSE today. The court below concluded that this statement was not materially misleading. Appellant urges us to reverse this determination. Whether a statement is materially misleading is a mixed question of law and fact to which we would normally apply a mixed standard of review. Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977); Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir.1981). But here, because appellant argues that the district — 759 — court erred in its application of legal precepts in determining that the subject statement was not misleading, our review is plenary. The request for a “no corporate development” statement was an inquiry to try to explain the upsurge in public activity in Heublein’s stock. As we have previously established, on July 14, Heublein was under no duty to disclose, and had not disclosed, the substantive elements of its discussions with either Reynolds or General Cinema. Each discussion was in a preliminary stage and no “agreement in principle,” or any functional equivalent thereof, had been reached. Further, because of the confidential nature of these discussions, there was no basis for Caspar to believe, and appellant alerted the district court to no evidence which might tend to prove, that any of the details of these discussions, not previously known to the public, had been recently leaked.6 Also, although Heublein had recently been the subject of public speculation regarding possible mergers and takeovers, see Wall St. J., Jan. 28, 1982, at 12, reprinted in app. at 83a, there is nothing to suggest that it started or encouraged any such rumors. Finally, with respect to General Cinema, its open market purchases were a matter of public record, see id., May 27, 1982, at 2, reprinted in app. at 82a, as was Heublein’s resistance thereto, see Heublein Press Release of Feb. 22,1982, reprinted in app. at 85a; Wall St. J., June 1, 1982, at 10, reprinted in app. at 199a. Therefore, when the NYSE called Caspar on July 14, he was understandably unable to explain what had caused the dramatic increase in activity in Heublein’s stock that day. While he, and other Heublein executives, clearly knew of information that might have accounted for the increase in trading, there was no indication that any of this privileged information had been leaked or that they knew of, or had, information that insiders were engaged in trading. Accordingly, there is no support to the keystone of the dissent’s hypothesis of the probability that this information could have been leaked, dissent at 765. Under these circumstances, we conclude that, as a matter of law, Caspar’s statement that Heublein “was aware of no reason that would explain the activity in its stock ...” was not false, inaccurate, or misleading.7 B. Appellant next asserts that, even presuming the July 14 statement was correct when given, subsequent events made it materially inaccurate and Heublein breached its duty to correct it. Heublein responds that, by its own terms, the statement spoke only about the activity in its stock on July 14. The statement expired the next day and, therefore, was inapplicable to subsequent trading activity. Thus, Heublein asserts that the company was under no duty to correct the contents of the statement even if it were to become materially misleading on the basis of future events. Although a close reading of the statement lends some support to Heublein’s view, we need not concern ourselves with it further because, even presuming that the July 14 statement survived the date of issuance, as a matter of law, it never became materially misleading on the basis of subsequent events and, therefore, no duty to — 760 — correct ever arose. This conclusion inescapably follows because, as previously shown, Heublein was never under a duty to disclose any of the substantive details of its discussions with either Reynolds or General Cinema prior to July 28. V. Appellant raises several final contentions, none of which need detain us long. First, because we conclude that the grant of summary judgment against appellant on his federal securities claims was proper, the district court did not err in dismissing the aiding and abetting claims against Reynolds. Second, because the district court, in ruling on defendant’s summary judgment motion, expressly considered the new claims contained in appellant’s motion to amend his complaint, the court’s refusal to grant the amendment motion was not error in light of its disposition of the case. Last, appellant asserts that, if all else done below was proper, then, as to its state law claims, the district court should have transferred them to the appropriate state court as provided in 42 Pa.Cons.Stat. Ann. § 5103 (Purdon 1983), rather than simply dismissing them. See Weaver v. Marine Bank, 683 F.2d 744 (3d Cir.1982). Because appellant, both at trial and on appeal, failed to present any equitable considerations that would indicate why the state claims should be transferred, we hold that it was not error for the district court to have dismissed them. Moreover, Pennsylvania has now amended its transfer statute to permit the preservation of claims filed in federal court without the necessity of any transfer order. 42 Pa.Cons.Stat. Ann. § 5103(b) (Purdon Supp.1983); see McLaughlin v. Arco Polymers, Inc., 721 F.2d 426 (3d Cir.1983). VI. Accordingly, the judgment of the district court will be affirmed. Footnotes [1] On July 13, 1982, in typical trading, approximately 32,500 shares of Heublein stock were traded, and the closing price was $40.25 per share. On July 14, approximately 242,500 shares were traded and the price rose to $43.00 at closing. [2] The statement read: At Heublein’s request, the New York Stock Exchange has suspended trading in the company’s stock. There is a matter in the midstream of development and the company expects to have a statement tomorrow. [3] Specifically, the complaint, alleged that Heublein violated the securities laws and that Reynolds aided and abetted in those violations. [4] Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. Section 14(e) of the Act, 15 U.S.C. § 78n(e) provides: It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation. The Commission shall, for purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative. Rule 10b-5, 17 C.F.R. § 240.10b-5 (1983), provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. [5] The district court did not certify a class. By agreement of the parties this issue was reserved until after the resolution of the summary judgment motion. See Memorandum opinion at 4 n. 5, reprinted in app. at 1468a n. 5. [6] The dissent suggests that even privileged information must be disclosed because of the probability that information could have been leaked to the investing public or ascertained by the investing public, dissent at 765, that the two companies were exploring a merger. Imposing such a duty prior to July 28 runs counter to the precept that there is no duty to disclose negotiations until an agreement in principle has been reached. We know of no duty to disclose ongoing negotiations because of the possibility of a leak. [7] Although Caspar could have made any number of other statements saying substantively the same thing, this is of no consequence to our decision today. We must judge the statement made. Although Caspar might properly have responded "no comment” to the NYSE inquiry, this likewise is of no import. He did not so respond and for us to now hold that he should have would inexorably imply that the statement he actually made was legally infirm. This, as we have demonstrated, is not the case.