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WRIGHT v. HEIZER CORP.

October 3, 1980

PETER WRIGHT AND BENEFICIAL STANDARD CORPORATION, PLAINTIFFS,
v.
THE HEIZER CORPORATION AND INTERNATIONAL DIGISONICS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Marshall, District Judge.

  MEMORANDUM DECISION

We have four issues to resolve in this shareholder derivative suit brought on behalf of International Digisonics Corporation (IDC) against defendant Heizer Corporation (Heizer). Plaintiffs alleged that Heizer defrauded IDC in a series of five transactions in which Heizer purchased IDC preferred stock and made loans in exchange for both demand notes and stock warrants. After we rendered our decision, 411 F. Supp. 23 (D.C.Ill.), the Court of Appeals affirmed in part and vacated in part, with directions to modify. Wright v. Heizer Corp., 560 F.2d 236 (7th Cir. 1977). The issues now awaiting resolution are (1) the adjustment of the maturities of the demand notes held by Heizer, (2) the amount of attorney's fees, if any, to be awarded to plaintiffs, (3) whether those fees should be assessed against Heizer and (4) whether IDC should be compelled to redeem the preferred stock held by Heizer.

FACTS

The facts underlying plaintiffs' complaint were set forth in great detail in our original memorandum decision and in the Court of Appeals decision. Thus we will limit our description of the facts to those necessary to provide an understanding of the remaining issues.

In a series of five transactions beginning in November, 1969, Heizer invested in IDC through the purchase of IDC preferred stock and the exchange of demand loans in return for stock warrants. In the first transaction, in November, 1969, Heizer purchased 100,000 shares of newly created Class A common stock at $10 per share. In addition, IDC gave Heizer a warrant to purchase 155,000 shares of IDC common stock at $8.50 per share. The warrant contained an antidilution clause which reduced the price to Heizer in the event IDC issued or sold common stock at less than $8.50. Heizer agreed to lend IDC up to $500,000 with interest at 2% over prime. This $500,000 sum was loaned to IDC in May, 1970.

In September, 1970, IDC and Heizer consummated the second transaction. IDC amended its certificate of incorporation to authorize 350,000 shares of a new class of preferred stock, carrying a weighted vote of 4.4 votes per share on all shareholder votes. Heizer exchanged the 100,000 shares of Class A common issued in the first transaction for 100,000 shares of the new preferred and purchased 200,000 additional shares at $10 per share in two takedowns of $1,000,000 each. After the second takedown, IDC issued an additional warrant to purchase 400,000 shares of IDC common at $6 per share, with an antidilution clause identical to the one employed in the first transaction.

The third transaction occurred in May, 1971. IDC amended its certificate of incorporation to increase the authorized common stock to 3,000,000 shares. IDC sold Heizer a twenty-year senior note in the principal amount of $1.7 million and issued additional warrants to purchase 472,222 shares of IDC common at $3.60 per share. The purchase price in the warrants issued in the first two transactions was adjusted to $3.60 per share and the number of shares purchasable under the warrants was increased to 276,223 for the first transaction and 555,555 for the second transaction. Thus by the conclusion of the third transaction Heizer could purchase 1,304,000 shares of common stock at $3.60 per share.

The fourth transaction, consummated in November, 1971, provided for loans of up to $600,000 by Heizer to IDC through sale of a note by IDC to Heizer payable on demand after March 31, 1972. If the entire $600,000 was loaned but not timely paid, Heizer could convert it into common stock at $1.00 per share. If the note became convertible, then the prices on the warrants from the first three transactions would be decreased from $3.60 per share to $1.00 per share and the number of shares purchasable would increase from 1,304,000 to 4,694,400. IDC amended its certificate of incorporation increasing the number of authorized common shares from 3,000,000 to 7,000,000.

On March 13, 1972, the November, 1971 agreement was amended to provide for an additional loan from Heizer to IDC of an amount up to $250,000. On March 13, Heizer loaned $105,000 of this amount to IDC. In addition, IDC issued a demand note in the amount of $114,508 to cover management services Heizer had performed for IDC. IDC was unable to repay any of the fourth transaction loans by March 31, 1972 and thus all warrants held by Heizer became exercisable at $1.00 per share. This gave Heizer the right to purchase 5,513,000 shares of IDC common stock, representing 87% of IDC's pro forma common stock equity. Between April 14, 1972 and April 19, 1973, Heizer loaned IDC an additional $2,015,000 in demand loans.

On October 11, 1972 the plaintiffs brought this action seeking to enjoin Heizer's exercise of the stock warrants and to obtain rescission of the first four transactions. Then on June 8, 1973, in the fifth transaction, Heizer agreed to refrain from demanding payment on the notes totalling $819,508 issued pursuant to the fourth transaction and demand notes totalling $2,015,000 issued between April 14, 1972 and April 19, 1973. In addition, Heizer agreed to make further demand loans to IDC in the maximum amount of $1,181,700 and a minimum of $460,400. IDC pledged all of the stock of its wholly owned subsidiary Talent and Residuals, Inc. (TR) to Heizer as security for the demand note loans made after April 14, 1972. Plaintiffs amended their complaint to challenge the fifth transaction as well as the first four.

In our memorandum decision of December 3, 1975, following a bench trial, we held that plaintiffs, as shareholders of IDC, could maintain the action derivatively on behalf of IDC, but not on their own behalf. We then held that plaintiffs had not proved a 10b-5 violation with respect to the first three transactions. We concluded that although Heizer had driven a hard bargain, IDC was badly in need of cash, and IDC's directors, counsel, and shareholders had been fully informed and that the directors were independent of Heizer's control.

We held, however, that Heizer had violated Rule 10b-5 in the fourth and fifth transactions. Because by the fourth transaction Heizer's agents were on IDC's board and held votes essential to the consummation of these transactions, we held that Heizer had a heavy burden of proving the fairness of these transactions. We noted that in the fourth transaction, Heizer, for an additional investment of only $600,000, had increased its claim on IDC's common equity from 1,304,000 shares at $3.60 per share to 4,694,000 (and after additional demand loans 5,513,000) shares at $1.00 per share. We also found that Heizer's valuation of IDC stock at $1.00 per share was inadequate and that Heizer had dealt unfairly with IDC. We held that the fifth transaction was also unfair. After the fourth transaction, Heizer could, through the warrants and convertible notes, capture 87% of IDC's equity and the profitable TR. Thus Heizer, by obtaining the pledge of TR stock in the fifth transaction, was attempting to protect itself from the outcome of this litigation. We noted that "[i]t is difficult to conjure a more blatant breach of trust." Wright v. Heizer Corp., 411 F. Supp. at 37.

We ordered the notes from the fourth and fifth transactions declared nonconvertible, and we voided any provision in the fourth transaction which permitted an increase of issuable common shares of IDC in excess of 1,304,000 or which permitted the exercise of a warrant at a price less than $3.60 per share. We also voided the pledge of TR stock to Heizer.

Prior to the Court of Appeals' consideration of our decision, Heizer presented a recapitalization plan to IDC's shareholders and in a proxy solicitation noted that IDC did not have the financial resources necessary to repay Heizer. Heizer threatened to institute bankruptcy proceedings for IDC if the plan was not approved. We enjoined consummation of the plan pending appeal. We also enjoined Heizer from collecting interest or principal on its loans to IDC. In a petition for supplemental relief, the plaintiffs urged that the demand loans held by Heizer were unfair and should be cancelled or reformed into common stock. We denied this petition for supplemental relief as untimely.

The Court of Appeals affirmed in part and vacated in part, with directions to modify. The plaintiffs filed but dismissed an appeal with respect to the first three transactions. The Court of Appeals held in light of the Supreme Court's intervening decision in Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977), that our conclusion that a breach of fiduciary duty by majority shareholders in itself violates rule 10b-5 was incorrect and that proof of a 10b-5 violation here would depend upon showings of nondisclosure, materiality, reliance and scienter. The court went on to find that all such elements had been proved on both the fourth and fifth transactions.

As for the fourth transaction, the court found lacking a full disclosure of a critical and material element, the charter amendment increasing the number of authorized shares of common stock from three to seven million. Because the shareholders, under applicable Delaware law, had the power to veto the transaction entirely, proof of materiality established reliance. The court also found the failure to disclose details of the controversial fourth transaction was highly unreasonable and constituted proof of "an extreme departure from the standards of ordinary care" as required by Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976).

As for the fifth transaction, the Court of Appeals found that because IDC's Board of Directors was virtually controlled by Heizer, which was self-dealing, only the independent shareholders could represent the corporation. Such independent shareholders are entitled to full disclosure.*fn1 See Dasho v. Susquehanna Corp., 461 F.2d 11 (7th Cir.), cert. denied, 408 U.S. 925, 92 S.Ct. 2496, 33 L.Ed.2d 336 (1972). The Court of Appeals found that this disclosure was missing here, inasmuch as the shareholders were first informed of the pledge two months after the transaction. Because under Delaware law the minority shareholders would have had the right to obtain a judicial determination of the fairness of the pledge transaction, the materiality requirement was fulfilled if the controlling shareholder, Heizer, could not demonstrate the fairness of the pledge transaction. The Court of Appeals held that the presumption of unfairness that we applied was appropriate because of Heizer's attempt to divorce its role as creditor from its role as fiduciary. The Court of Appeals found unpersuasive Heizer's arguments in support of the fairness of the pledge transaction. Heizer's first explanation, that the pledge was a device to discourage the "nuisance" suit filed by plaintiffs, was inconsistent with the duty to deal fairly with the minority. The second explanation, that in light of the possible result of plaintiffs' suit the pledge was necessary to preserve Heizer's flexibility of choosing between maintaining its senior position or converting its holdings into common stock, bore no relation to IDC's welfare. Finally, the Court of Appeals found that the failure to disclose was reckless because Heizer must have known that the pledge was for its own benefit and thus would arouse a great deal of opposition.

The Court of Appeals affirmed our nullification of the pledge transaction, the cancellation of the conversion feature, price adjustment, and charter amendment in the fourth transaction. The court, however, reversed our determination that the petition for supplemental relief with respect to the demand loans was untimely. The court held that the loans constituted a "heads-I-win-tails-you-lose" series of transactions, inasmuch as Heizer could obtain a controlling share of IDC's equity if IDC's monitoring effort was successful but could call in its loans and put IDC into bankruptcy if the monitoring venture failed. Thus the court held that

  [I]n order to unravel in an equitable manner the
  transactions resulting from Heizer's wrongful
  conduct, the maturities of the loans should be
  adjusted to make them commensurate with IDC's ability
  to pay. On remand the District Court should make the
  necessary determinations and modify the terms of the
  loans accordingly.

560 F.2d at 254.

Thus the mandate of the Court of Appeals requires us to modify the maturities of the loans commensurate with IDC's ability to pay. Plaintiffs, Heizer, and IDC's management have all submitted proposals for scheduling this repayment. Before we determine which proposal to adopt, however, we must resolve other issues. Plaintiffs have moved for attorney's fees and have sought to compel IDC to redeem the preferred stock held by Heizer. If we decide that plaintiffs are entitled to attorney's fees, and that the fees should be assessed against IDC and not Heizer, we will have to adjust the repayment schedule to reflect the attorney's fees.*fn2 Similarly, if we hold that IDC should redeem the preferred stock now, IDC's ability to repay the demand loans will be affected and the schedule for repayment will require modification. Thus we will determine first whether IDC must redeem the preferred stock held by Heizer. We will then determine whether plaintiffs are entitled to attorney's fees and who should pay them. Finally, we will consider which of the three repayment plans is best.

REDEMPTION OF PREFERRED STOCK

Heizer owns 209,048 shares of preferred stock.*fn3 Although 350,000 shares are authorized, Heizer owns the only preferred stock outstanding. Each preferred share carries 4.4 votes. Plaintiffs seek an injunction requiring IDC to redeem this preferred stock.

Both IDC and Heizer oppose redemption. They claim first that because the issue is governed by state law and is not within the Court of Appeals mandate, we have no jurisdiction to hear the claim. Further, IDC and Heizer argue that even if we do have jurisdiction, IDC is barred by Delaware law from redeeming any preferred stock at this time. Delaware law prohibits a corporation from redeeming stock when the corporation's capital is impaired or would be impaired by redemption. Del.Code Tit. 8, § 160. Section 160 also contains an exception which permits redemption of preferred stock out of capital. IDC and Heizer contend that IDC's capital would be impaired by redemption and that IDC does not have sufficient capital to redeem the preferred stock by resort to the exception.

Plaintiffs contend in response that the redemption issue is encompassed within the Court of Appeals mandate, because before we can determine how to adjust the maturities of the demand loans, we must determine what other obligations IDC must fulfill. One such obligation, according to plaintiffs, is the redemption of the preferred stock. Plaintiffs further contend that the statutory limitations contained in Delaware law are inapplicable because the Delaware law is designed to protect shareholders and creditors, but no common stockholder opposes redemption and IDC has no creditors other than Heizer who might be affected by the redemption. Even if Delaware law does apply, plaintiffs contend that "additional paid-in capital" should be included with capital to trigger the exception in § 160.

Before proceeding to the merits of plaintiffs' motion, we must determine whether we have jurisdiction to hear it. When a district court enters a final judgment in a case, and an appeal is filed, the district court loses jurisdiction over the case. The only further action that the district court may take is action that will aid the appeal or correct clerical errors. 9 Moore's Federal Practice ¶ 203.11 at 738-39; Lloyd v. Lawrence, 60 F.R.D. 116, 117-18 (D.C.Tex. 1973). Then if the Court of Appeals decides the appeal and remands, issues determined by the appellate court cannot be reconsidered by the district court upon remand. United States v. Parke, Davis & Co., 365 U.S. 125, 81 S.Ct. 433, 5 L.Ed.2d 457 (1961). Thus the district court on remand may consider issues raised below but left open by the Court of Appeals, issues ancillary or pendent to those left open, issues for which an independent basis of jurisdiction exists, and issues ancillary to the mandate.

Applying these general principles to the instant case, we find that our memorandum decision addressed all five transactions challenged by plaintiffs. Upon appeal, plaintiffs chose not to contest our rulings with respect to the first three transactions. They are, therefore, precluded from asserting, either here or in the Court of Appeals, that defendants violated Rule 10b-5 in those transactions. The Court of Appeals ruled on the 10b-5 contentions with respect to the fourth and fifth transactions. The only issue left open by the Court of Appeals was the maturities of the demand notes. Our remand jurisdiction now extends only to the determination of the modification of the demand notes. Thus unless an independent basis for federal jurisdiction exists or unless the redemption issue is ancillary to the Court of Appeals mandate to reform the demand notes, we have no jurisdiction to hear it.

Even if plaintiffs were to amend their complaint or bring a related action seeking to compel redemption, we cannot conceive of a federal law, nor have plaintiffs suggested any, that would require redemption here and that would convey a basis for federal jurisdiction.*fn4 Rule 10b-5 applies only to the purchase or sale of securities. Inasmuch as we held that the sale of the preferred stock to Heizer was not a violation of 10b-5, then the redemption issue does not present a 10b-5 question. Moreover, Delaware law does contain a detailed provision regarding redemption, and the issue is one which is "traditionally relegated to state law." See Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 478, 97 S.Ct. 1292, 1303, 51 L.Ed.2d 480 (1977). Thus no independent federal jurisdiction exists.

Plaintiffs contend that even if state law is applicable, the redemption issue is ancillary to the mandate. According to the plaintiffs, the mandate requires us to determine IDC's ability to repay the demand notes. IDC's ability to repay is dependent upon its other obligations, one of which is the obligation to redeem the preferred stock held by Heizer. Therefore, in order to determine what obligations will affect IDC's ability to repay the loans, we must determine whether IDC must first redeem the preferred stock. Plaintiffs also claim that Heizer has refused to permit IDC to redeem the preferred stock "in flagrant violation of the ruling of the Court of Appeals in this case that Heizer cannot use its power over the corporate machinery to maintain its control over the corporation." Plaintiffs' Motion for Preliminary and Permanent Injunction, at 3.

We agree with plaintiffs that we should consider IDC's obligations in determining how to schedule repayment of the loans commensurate with IDC's ability to pay. We do not agree, however, that such consideration could result in an order compelling redemption of the stock. The mandate empowers us to formulate a schedule for repayment of the demand notes. We could, ancillary to the mandate, enjoin any action that would frustrate the mandate. We do not believe, however, that the redemption or nonredemption of the preferred stock would carry any potential for frustrating the mandate. The mandate requires only that we reform the demand notes commensurate with IDC's ability to pay. Findings of fact resulting from a determination of what obligations, such as redemption, affect IDC's ability to pay are within the scope of the mandate. Enforcement of those obligations is not. Thus we must make findings with respect to whether Delaware requires redemption, but we are not empowered to order redemption.

As a practical matter, it makes little difference whether we have the power to order redemption, because we conclude that Delaware law prohibits redemption of the preferred stock owned by Heizer at this time. The Delaware law governing redemption, Del.Code Tit. 8, § 160, is designed for the benefit of both creditors and shareholders. See Propp v. Sadacca, 40 Del. Ch. 113, 175 A.2d 33, 38 (1961), modified, 41 Del. Ch. 14, 187 A.2d 405 (1962). Moreover, plaintiffs have offered no support for the contention that no common stock owners oppose redemption, and IDC has creditors other than Heizer. Transcript (Tr.) at 283. Thus we conclude that plaintiffs' assertion that Delaware law governing redemption should not apply because no one here is deserving of its protection is incorrect.

Section 160 of the Delaware General Corporation Law (DGCL) provides that a corporation may not redeem its own shares

  [W]hen the capital of the corporation is impaired or
  when such purchase or redemption would cause any
  impairment of the capital of the corporation, except
  that a corporation may purchase or redeem out of
  capital any of its own shares which are entitled upon
  any distribution of its assets, whether by dividend
  or in liquidation, to a preference over another class
  or series of its stock if such shares will be retired
  upon their acquisition and the capital of the
  corporation reduced in accordance with §§ 243 and
  244 of this title.

A corporation redeeming its own shares would impair its capital within the meaning of § 160 unless it redeems shares out of "surplus." In Re International Radiator Co., 10 Del. Ch. 358, 92 A. 255 (1914). Section 154 of the DGCL defines "surplus" as "the excess, if any, at any given time, of the net assets of the corporation over the amount . . . determined to be capital." Section 154 defines "net assets" as "the amount by which total assets exceed total liabilities." Del.Code Tit. 8, § 154. The most recent IDC balance sheet which is part of the record shows that IDC has assets of $10,278,746 and liabilities of $15,863,161. See Plaintiffs' Exhibit 4, IDC Consolidated Balance Sheet as of December 31, 1977. Under Delaware law, IDC has a negative surplus and its capital would be impaired by redemption.

Section 160 provides an exception to the impairment of capital rule. The corporation may redeem preferred stock out of capital if the shares are retired and the capital reduced. Section 154 defines "capital" as "an amount equal to aggregate par value of such shares." The par value of the 300,000 IDC preferred shares is $3,000,000. Although § 154 provides that a corporation may designate an amount in excess of par value to be "capital," the IDC Board of Directors made no such designation. In fact, the Certificate of Amendment of Incorporation of IDC specifically provides that the corporation will not classify as capital the excess of the consideration received for preferred stock over the aggregate par value of the preferred shares. See Certificate of Amendment of Certificate of Incorporation of International Digisonics Corp., Exhibit B to Appendix C to Post Hearing Brief of Heizer Corp.

Plaintiffs argue, however, that the item on IDC's balance sheet designated as "paid-in capital" indicates the amount of IDC's "capital" for the purpose of redemption under § 160. We agree with defendants, however, that "paid-in capital" is merely a descriptive accounting term and certainly cannot be taken as a corporate designation of "capital" in excess of par value as defined by § 154. See G. Dick & R. Rickert, Accounting Trends & Techniques (31st ed. 1977). Therefore, § 160 of the DGCL prohibits redemption of IDC preferred stock at this time.

ATTORNEY'S FEES

1. Assessment of Fees Against Heizer Corp.

Plaintiffs seek attorney's fees from Heizer or IDC. They first seek fees from Heizer under the "bad faith" exception to the "American rule" that a winning litigant cannot recover attorney's fees from the loser. If plaintiffs' counsel (hereinafter petitioners) cannot recover fees from Heizer, they seek to be paid by IDC on the grounds that plaintiffs' derivative suit substantially benefited the corporation. Petitioners Edward Slovick and James S. Gordon seek fees of $90 per hour for 3,965 hours, $95 per hour for 498.5 hours, and $100 per hour for 1,091.75 hours, for a total of $489,082.50. They also seek a multiplier of 3.5 imposed on the 3,695 hours at $90 per hour (or $315 per hour) and a multiplier of 2.0 imposed on the remaining hours (or $190-200 per hour), for a total fee of $1,476,990. A. Bradley Eben and Michael Rosenhouse, who assisted Slovick and Gordon at various times, seek $6,656.00 and $2,952.00 respectively. Additionally, J. Samuel Tenenbaum and Theodore Becker, who assisted Slovick and Gordon on the appeal, have filed a petition for fees at the rate of $75 per hour for 350.05 hours, with a multiplier of 3, and $75 per hour for 73 hours, with a multiplier of 2, for a total of $89,711.25. On April 5, 1978, April 16, 1979 and November 16, 1979, we entered orders awarding Slovick and Gordon interim fees in the amounts of $230,000, $70,000, and $75,000 respectively, which have been paid.*fn5

Before proceeding to the specifics of the determination of the proper amount of fees, we will first determine whether IDC or Heizer is liable for any of plaintiffs' attorney's fees. Both IDC and petitioners contend that Heizer should be liable for fees under the "bad faith" exception to the American rule. The American rule provides that a losing party is not liable for the prevailing party's fees. Under the "bad faith" exception, however, the prevailing party is entitled to fees from the losing party if that party "has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974). IDC has sought to assess petitioners' fees and its own fees against Heizer. We will consider fees for petitioners first, separate from the fees incurred by IDC.

Petitioners and IDC point to alleged bad faith conduct of Heizer before and during the suit and after trial. Before suit, Heizer allegedly acted in bad faith by entering into the fourth transaction in which Heizer obtained 87% of the pro forma equity of IDC at an inadequate price. As for conduct occurring during the pendency of the action, petitioners and IDC point to the fifth, or pledge, transaction, which we found, and the Court of Appeals agreed, to be an attempt by Heizer to discourage this litigation and to protect itself from the results of the litigation. As evidence of bad faith after trial but before appeal, plaintiffs and IDC focus on Heizer's proposed recapitalization plan which Heizer attempted to force upon IDC's shareholders by threatening to put IDC into bankruptcy unless the plan were approved.

Heizer responds first by contending that bad faith attorney's fees, which are punitive in nature, cannot be awarded in 10b-5 cases, because the Securities Exchange Act of 1934 does not permit awards of punitive damages for violations of § 10(b). Even if bad faith attorney's fees could be awarded here, Heizer argues that it did not act in bad faith and attempts to introduce a legitimate purpose for all of its allegedly bad faith action.

We must apply the test for awarding bad faith attorney's fees stringently. See Satoskar v. Indiana Real Estate Commission, 517 F.2d 696 (7th Cir. 1975). Only in "exceptional cases and for dominating reasons of justice" can such an award be justified. 8 Moore's Federal Practice, ¶ 54.77[2] at 1709-11. The Seventh Circuit has held, however, that the conduct justifying an award of attorney's fees under the bad faith doctrine may be part of the conduct necessitating the action or conduct occurring during the course of the litigation. Bond v. Stanton, 528 F.2d 688, 690 (7th Cir.), vacated on other grounds, 429 U.S. 973, 97 S.Ct. 479, 50 L.Ed.2d 581 (1976). See also Hall v. Cole, 412 U.S. 1, 5, 15, 93 S.Ct. 1943, 1946, 1951, 36 L.Ed.2d 702 (1973).

Therefore, two possible bases underlie an award for bad faith: conduct occurring during the litigation having an impact on the litigation process, and conduct inherent in the substantive violation. Petitioners and IDC allege that the fourth transaction is in the latter category and the fifth transaction and the proposed recapitalization plan fall in both categories. In the context of this case, however, we conclude that only bad faith conduct occurring during the course of this litigation, and not conduct necessitating the action, may be the basis for an award of fees. In Straub v. Vaisman & Co., Inc., 540 F.2d 591 (3d Cir. 1976), the Third Circuit reversed a district court's award of bad faith fees in a 10b-5 action. The district court had based its award on the "wilful and wanton fraud" of the defendants in selling stock to plaintiffs. The court noted that the Securities Exchange Act prohibits a recovery in excess of actual damages, and that therefore punitive damages are prohibited. See 15 U.S.C. § 78bb(a); Gould v. American-Hawaiian Steamship Co., 535 F.2d 761 (3d Cir. 1976). The fees that the district court awarded in Straub resulted not from conduct occurring during the litigation process but from bad faith conduct "inherent in the fraudulent acts which constituted the cause of action itself." 540 F.2d at 599. Inasmuch as bad faith attorney's fees are punitive in nature, see Hall v. Cole, supra at 5, 93 S.Ct. at 1946, the Straub court held that an award of bad faith attorney's fees for the fraudulent acts would violate the Exchange Act's proscription of punitive damages.*fn6

Petitioners and IDC argue that Straub is logically unsound because courts will often award punitive damages under a state law claim for conduct which violates both state law and rule 10b-5. See, e.g., Flaks v. Koegel, 504 F.2d 702, 706-07 (2d Cir. 1974). Thus plaintiffs and IDC argue that attorney's fees for defendants' bad faith conduct would be a punitive award under a claim other than the 10b-5 claim. We are inclined to agree with IDC that the holding in Straub is overly strict in prohibiting attorney's fees in all 10b-5 cases in which the alleged bad faith conduct is inherent in the 10b-5 claim. In the context of this case, however, we do not believe that the prelitigation alleged bad faith conduct, which was inherent in the 10b-5 claim underlying the fourth transaction, supports an award of fees on a bad faith theory.

Petitioners and IDC argue that "not only" was the fourth transaction a violation of 10b-5, but it was also "reckless" and "highly unreasonable."*fn7 The recklessness or unreasonableness was an element of the 10b-5 claim. The plaintiffs could not prove a violation of 10b-5 without showing scienter as required by Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). If proof of such recklessness alone were enough to constitute bad faith sufficient to justify an award of attorney's fees, every derivative plaintiff prevailing in a 10b-5 cause of action would be entitled to attorney's fees. We do not believe that such a rule would comport with the stringent requirements of the bad faith exception, and we decline to apply such a rule here.

Presumably, the petitioners and IDC would argue that the degree of recklessness is relevant in determining bad faith and that some reckless conduct would be sufficient to prove a 10b-5 violation but not sufficient to justify a bad faith fee award. Although such lines are difficult to draw, we should not foreclose the possibility that a 10b-5 plaintiff could prove that a defendant's behavior in the conduct giving rise to the cause of action was so outrageous as to justify an award of bad faith fees. Heizer's conduct in the fourth transaction is not such a case.

Although Heizer's conduct during the fourth transaction violated Rule 10b-5, we do not believe that the conduct was so egregious as to constitute bad faith. This is not a case in which the defendant defrauded the corporation. See Straub, supra. Rather, Heizer imposed an unfair transaction on a corporation badly in need of funds, and Heizer violated Rule 10b-5 by failing to properly disclose all of the facts regarding the transaction. Therefore, although Heizer behaved recklessly, its actions were at least in part the product of market considerations. Therefore the fourth transaction cannot be the basis for an award of fees under the bad faith exception.

We come to the same conclusion with respect to the recapitalization proposal. Although we enjoined implementation of the proposal, we made no findings as to the fairness of the plan. Moreover, as with the fourth transaction, we cannot now say that the plan was so egregiously unfair as to justify an award simply by virtue of its unfairness. Thus unless the proposal was designed to impact on the litigation process, we will not assess fees against Heizer for proposing the plan.

We do not believe that the recapitalization plan had sufficient potential to frustrate the litigation so as to constitute bad faith. As Heizer notes, prior to the proposal, we had denied supplemental relief as to the demand notes. Because the notes remained obligations of IDC, recapitalization may have been desirable and even necessary. See Crossett testimony, Tr. 463, 492-94. Furthermore, Heizer gave plaintiffs notice of the plan sufficient to prevent its implementation, and the plan as proposed could have been adjusted, by cancelling the preferred stock, were the Court of Appeals to grant relief as to the demand notes. Thus although the notice to the shareholders appeared to be coercive, we do not believe that the recapitalization had sufficient potential to frustrate the litigation so as to warrant an award of fees on a bad faith theory.

Thus the pledge transaction was an attempt by Heizer to frustrate the litigation by rendering useless any relief plaintiffs could obtain. The pledge is therefore analogous to a frivolous defense or counterclaim, presented solely to harass a plaintiff and delay his recovery, for which bad faith attorney's fees are clearly available. Indeed, the pledge had the potential for even more impact on the litigation than a frivolous defense. A frivolous defense only delays ultimate recovery, but the pledge here could have rendered any recovery meaningless. As conduct occurring during litigation, and as action taken in response to that litigation, even the Straub court would not preclude attorney's fees on a bad faith theory here. Thus we hold that petitioners are entitled to fees from Heizer for its bad faith conduct in the fifth transaction.

Petitioners and IDC have also argued that Heizer should be liable for fees by virtue of its violation of fiduciary duties owed to IDC. Relying on the Court of Appeals' determination that Heizer acted in a fiduciary capacity to IDC, plaintiffs and IDC cite state law cases indicating that a fiduciary violating its duties is liable for the plaintiff's attorney's fees. See, e.g. Wilmington Trust Co. v. Coulter, 42 Del. Ch. 253, 208 A.2d 677, 682-83 (1965). Further, petitioners and IDC argue that even if federal law controls, a fee award for violation of fiduciary duties is an exception to the American rule, either as a separate exception or as a subset of the bad faith exception.

Because we have held that Heizer is liable for fees with respect to the fifth transaction, we need only consider Heizer's liability for fees on a breach of fiduciary duty theory with respect to the fourth transaction and the recapitalization plan. Federal law governs this issue. Plaintiff's complaint did not allege that Heizer violated state law either in the fourth transaction or in the attempt to effect a recapitalization plan. Although the Court of Appeals considered Heizer's position as a fiduciary in determining what disclosure obligations Heizer had under 10b-5, petitioners cannot boost this discussion into ...


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