Fed. Sec. L. Rep. P 95,844 William H. Doran, Jr. v. Petroleum Management Corp., Morton A. Sterling and O. W. Fauntleroy

In this case a sophisticated investor who purchased a limited partnership interest in an oil drilling venture seeks to rescind. The question raised is whether the sale was part of a private offering exempted by § 4(2) of the Securities Act of 1933, 15 U.S.C. § 77d(2) (1970), from the registration requirements of that Act. See Securities Act of 1933, §§ 5,12(1), 15 U.S.C. §§ lie, 11 1 (l). 1 We hold that in the absence of findings of fact that each offeree had been furnished information about the issuer that a registration statement would have disclosed or that each offeree had effective access to such information, the district court erred in concluding that the offering was a private placement. Accordingly, we reverse and remand.

1. Facts

Prior to July 1970, Petroleum Management Corporation (PMC) organized a California limited partnership for the purpose of drilling and operating four wells in Wyoming. The limited partnership agreement provided for both “participants,”' whose capital contributions were to be used first to pay all intangible expenses incurred by the partnership, and “special participants,” whose capital contributions were to be applied first to pay tangible drilling expenses. 2

*898 PMC and Inter-Tech Resources, Inc., were initially the only “special participants” in the limited partnership. They were joined by four “participants.” As found by the district court, PMC contacted only four other persons with respect to possible participation in the partnership. All but the plaintiff declined.

During the late summer of 1970, plaintiff William H. Doran, Jr., received a telephone call from a California securities broker previously known to him. The broker, Phillip Kendrick, advised Doran of the opportunity to become a “special participant” in the partnership. PMC then sent Doran the drilling logs and technical maps of the proposed drilling area. PMC informed Doran that two of the proposed four wells had already been completed. Doran agreed to become a “special participant” in the Wyoming drilling program. In consideration for his partnership share, Doran agreed to contribute $125,000 toward the partnership. Doran was to discharge this obligation by paying PMC $25,000 down and in addition assuming responsibility for the payment of a $113,643 note owed by PMC to Mid-Continent Supply Co. Doran’s share in the production payments from the wells was to be used to make the installment payments on the Mid-Continent note.

Pursuant to this arrangement, on September 16, 1970, Doran executed a promissory note, already signed by the President and Vice President of PMC in their individual capacities, for $113,643 payable to Mid-Continent. On October 5, 1970, Doran mailed PMC a check for $25,000. He thereby became a “special participant” in the Wyoming drilling program.

On July 16, 1971, the balance on the note to Mid-Continent became due. The parties renegotiated the loan. A new note for $66,-292.24 was executed by PMC, the two PMC officers, and Doran. Pursuant to a written agreement of February 9, 1971, however, Doran had agreed to hold PMC and its officers harmless for any liability arising from the Mid-Continent note. The July renegotiation did not alter Doran’s obligation.

During 1970 and 1971, PMC periodically sent Doran production information on the completed wells of the limited partnership. Throughout this period, however, the wells were deliberately overproduced in violation of the production allowances established by the Wyoming Oil and Gas Conservation Commission. As a consequence, on November 16, 1971, the Commission ordered the partnership’s wells sealed for a period of 338 days. On May 1,1972, the Commission notified PMC, that production from the wells could resume on August 9, 1972. After August 9, the wells yielded a production income level below that obtained prior to the Commission’s order.

Following the cessation of production payments between November 1971 and August 1972 and the decreased yields thereafter, the Mid-Continent note upon which Do-ran was primarily liable went into default. Mid-Continent subsequently obtained a state court judgment against Doran, PMC, and the two signatory officers of PMC for $50,815.50 plus interest and attorney’s fees.

On October 16,1972, Doran filed this suit in federal district court seeking damages for breach of contract, rescission of the contract based on violations of the Securities Acts of 1933 and 1934, and a judgment declaring the defendants liable for payment of the state judgment obtained by Mid-Continent. 3

The court below found that the offer and sale of the “special participant” interest was a private offering because Doran was a sophisticated investor who did not need the *899 protection of the Securities Acts. The court also found that there was no evidence that PMC, its officers, or Kendrick made any misrepresentation or omissions of material facts to Doran. Finally, the court found that the overproduction of the wells was not a breach of the partnership agreement, but in any event there was no evidence that Doran suffered any losses as a result of the overproduction. The court concluded that all relief requested by Doran should be denied. Doran filed this appeal.

II. The Private Offering Exemption

No registration statement was filed with any federal or state regulatory body in connection with the defendants’ offering of securities. 4 Along with two other factors that we may take as established — that the defendants sold or offered to sell these securities, and that the defendants used interstate transportation or communication in connection with the sale or offer of sale — the plaintiff thus states a prima facie case for a violation of the federal securities laws. See Hill York Corp. v. American International Franchises, Inc., 448 F.2d 680, 686 (5th Cir. 1971). 5

The defendants do not contest the existence of the elements of plaintiff’s prima facie case but raise an affirmative defense that the relevant transactions came within the exemption from registration found in § 4(2), 15 U.S.C. § 77d(2). Specifically, they contend that the offering of securities was not a public offering. The defendants, who of course bear the burden of proving this affirmative defense, must therefore show that the offering was private. See SEC v. Ralston Purina Co., 346 U.S. 119, 126, 73 S.Ct. 981, 985, 97 L.Ed. 1494 (1953); Hill York Corp. v. American International Franchises, Inc., supra, 448 F.2d at 690; Lively v. Hirschfeld, 440 F.2d 631, 632 (10th Cir. 1971); United States v. Custer Channel Wing Corp., 376 F.2d 675, 678 (4th Cir.), cert. denied, 389 U.S. 850, 88 S.Ct. 38, 19 L.Ed.2d 119 (1967).

This court has in the past identified four factors relevant to whether an offering qualifies for the exemption. The consideration of these factors, along with the policies embodied in the 1933 Act, structure the inquiry. Hill York Corp. v. American International Franchises, Inc., supra, 448 *900 F.2d at 687-88; Henderson v. Hayden, Stone Inc., 461 F.2d 1069, 1071 (5th Cir. 1972); SEC v. Continental Tobacco Co. of South Carolina, 463 F.2d 137, 158 (5th Cir. 1972); see also Woolf v. S. D. Cohn & Co., 515 F.2d 591, 609 (5th Cir. 1975), vacated on other grounds, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed. 2d 1181 (1976). The relevant factors include the number of offerees and their relationship to each other and the issuer, the number of units offered, the size of the offering, and the manner of the offering. Consideration of these factors need not exhaust the inquiry, nor is one factor’s weighing heavily in favor of the private status of the offering sufficient to ensure the availability of the exemption. Rather, these factors serve as guideposts to the court in attempting to determine whether subjecting the offering to registration requirements would further the purposes of the 1933 Act.

The term, “private offering,” is not defined in the Securities Act of 1933. The scope of the § 4(2) private offering exemption must therefore be determined by reference to the legislative purposes of the Act. In SEC v. Ralston Purina Co., supra, the SEC had sought to enjoin a corporation’s offer of unregistered stock to its employees, and the Court grappled with the corporation’s defense that the offering came within the private placement exemption. The Court began by looking to the statutory purpose:

Since exempt transactions are those as to which “there is no practical need for . [the bill’s] application,” the applicability of [§ 4(2)] should turn on whether the particular class of persons affected need the protection of the Act. An offering to those who are shown to be able to fend for themselves is a transaction “not involving any public offering.”

346 U.S. at 124, 73 S.Ct. at 984. According to the Court, the purpose of the Act was “to protect investors by promoting full disclosure of information thought necessary to informed investment decisions.” Id. at 124, 73 S.Ct. at 984. It therefore followed that “the exemption question turns on the knowledge of the offerees.” Id. at 126-27, 73 S.Ct. at 985. That formulation remains the touchstone of the inquiry into the scope of the private offering exemption. It is most nearly reflected in the first of the four factors: the number of offerees and their relationship to each other and to the issuer.

In the case at bar, the defendants may have demonstrated the presence of the latter three factors. A small number of units offered, relatively modest financial stakes, and an offering characterized by personal contact between the issuer and offerees free of public advertising or intermediaries such as investment bankers or securities exchanges — these aspects of the instant transaction aid the defendants’ search for a § 4(2) exemption. 6

Nevertheless, with respect to the first, most critical, and conceptually most problematic factor, the record does not permit us to agree that the defendants have proved that they are entitled to the limited sanctuary afforded by § 4(2). We must examine more closely the importance of demonstrating both the number of offerees and their relationship to the issuer in order to see why the defendants have not yet gained the § 4(2) exemption.

A. The Number of Offerees

Establishing the number of persons involved in an offering is important both in order to ascertain the magnitude of the offering and in order to determine the characteristics and knowledge of the persons thus identified.

The number of offerees, not the number of purchasers, is the relevant figure in considering the number of persons involved in an offering. Hill York Corp. v. American International Franchises, Inc., supra, 448 F.2d at 691. A private placement *901 claimant’s failure to adduce any evidence regarding the number of offerees will be fatal to the claim. SEC v. Continental Tobacco Co., supra, 463 F.2d at 161; Henderson v. Hayden, Stone Inc., supra, 461 F.2d at 1071-72; Repass v. Rees, 174 F.Supp. 898, 904 (D.Colo.1959). The number of offerees is not itself a decisive factor in determining the availability of the private offering exemption. Just as an offering to few may be public, so an offering to many may be private. SEC v. Ralston Purina Co., supra, 346 U.S. at 125, 73 S.Ct. at 984-85. 7 Nevertheless, “the more offerees, the more likelihood that the offering is public.” Hill York Corp. v. American International Franchises, Inc., supra, 448 F.2d at 688. In the ease at bar, the record indicates that eight investors were offered limited partnership shares in the drilling program — a total that would be entirely consistent with a finding that the offering was private.

The defendants attempt to limit the number of offerees even further, however. They argue that Doran was the sole offeree because all others contacted by PMC were offered “participant” rather than “special participant” interests. The district court, which did not issue a finding of fact or conclusion of law with respect to this argument, appears to have assumed that there were eight offerees. 8

The argument is, in any event, unsupported by the record. The only evidence that the defendants adduced to show the number of offerees established merely that offers of “participant” interests were made to four investors who accepted, and that offers of “limited partnership” interests were made to three other prospective investors who declined. Because both “participant” and “special participant” interests were limited partnership interests, we are unable to discern from the record whether the three declining investors were offered “special participant” interests. Moreover, we have no evidence that the four “participants” were not also offered “special participant” interests. The defendants have the burden of proof regarding the number of offerees. We must therefore reject the argument that Doran was the sole offeree. 9

*902 In considering the number of offerees solely as indicative of the magnitude or scope of an offering, the difference between one and eight offerees is relatively unimportant. Rejecting the argument that Doran was the sole offeree is significant, however, because it means that in considering the need of the offerees for the protection that registration would have afforded we must look beyond Doran’s interests to those of all his fellow offerees. Even the offeree-plaintiff’s 20-20 vision with respect to the facts underlying the security would not save the exemption if any one of his fellow offerees was in a blind.

B. The Offerees’ Relationship to the Issuer

Since SEC v. Ralston, supra, courts have sought to determine the need of offerees for the protections afforded by registration by focusing on the relationship between offerees and issuer and more particularly on the information available to the offerees by virtue of that relationship. Id., 346 U.S. at 126-27, 73 S.Ct. at 985. Once the offerees have been identified, it is possible to investigate their relationship to the issuer.

The district court concluded that the offer of a “special participant” interest to Doran was a private offering because Doran was a sophisticated investor who did not need the protections afforded by registration. It is important, in light of our rejection of the argument that Doran was the sole offeree, that the district court also found that all four “participants” and all three declining offerees were sophisticated investors with regard to oil ventures.

The need of the offerees for the protection afforded by registration is, to be sure, a question of fact dependent upon the circumstances of each case. Hill York Corp. v. American International Franchises, Inc., supra, 448 F.2d at 687. Nevertheless, the trial court’s conclusion with respect to the availability of the private offering exemption may be set aside if induced by an erroneous view of the law. See SEC v. Continental Tobacco Co., supra, 463 F.2d at 156-57; Henderson v. Hayden, Stone Inc., supra, 461 F.2d at 1071.

1. The role of investment sophistication

The lower court’s finding that Do-ran was a sophisticated investor is amply supported by the record, as is the sophistication of the other offerees. Doran holds a petroleum engineering degree from Texas A&M University. His net worth is in excess of $1,000,000. His holdings of approximately twenty-six oil and gas properties are valued at $850,000.

Nevertheless, evidence of a high degree of business or legal sophistication on the part of all offerees does not suffice to bring the offering within the private placement exemption. We clearly established thalt proposition in Hill York Corp. v. American International Franchises, Inc., supra, 448 F.2d at 690. We reasoned that “if the plaintiffs did not possess the information requisite for a registration statement, they could not bring their sophisticated knowledge of business affairs to bear in deciding whether or not to invest . . . .” So-

phistication is not a substitute for access to the information that registration would disclose. United States v. Custer Channel Wing Corp., supra, 376 F.2d at 678. As we said in Hill York, although the evidence of the offerees’ expertise “is certainly favorable to the defendants, the level of sophistication will not carry the point. In this context, the relationship between the promoters and the purchasers and the ‘access to the kind of information which registration would disclose’ become highly relevant factors.” 448 F.2d at 690. 10

*903 In short, there must be sufficient basis of accurate information upon which the sophisticated investor may exercise his skills. Just as a scientist cannot be without his specimens, so the shrewdest investor’s acuity will be blunted without specifications about the issuer. For an investor to be invested with exemptive status he must have the required data for judgment.

2. The requirement of available information

The interplay between two factors, the relationship between offerees and issuer and the offerees’ access to information that registration would disclose, has been a matter of some conceptual and terminological difficulty. For purposes of this discussion, we shall adopt the following conventions: We shall refer to offerees who have not been furnished registration information directly, but who are in a position relative to the issuer to obtain the information registration would provide, as having “access" to such information. By a position of access we mean a relationship based on factors such as employment, family, or economic bargaining power that enables the offeree effectively to obtain such information. See SEC Rule 146(e), 17 C.F.R. § 280.146(e) (1976). When offerees, regardless of whether they occupy a position of access, have been furnished with the information a registration statement would provide, we shall say merely that such information has been disclosed. When the offerees have access to or there has been disclosure of the information registration would provide, we shall say that such information was available.

The requirement that all offerees have available the information registration would provide has been firmly established by this court as a necessary condition of gaining the private offering exemption. Our decisions have been predicated upon Ralston Purina, supra, where the Supreme Court held that in the absence of a showing that the “key employees” to whom a corporation offered its common stock had knowledge obviating the need for registration, the offering did not qualify for the private offering exemption. The Court said that an employee offering would come within the exemption if it were shown that the employees were “executive personnel who because of their position have access to the same kind of information that the act would make available in the form of a registration statement.” Id., 346 U.S. at 125-26, 73 S.Ct. at 985.

In Hill York Corp. v. American International Franchises, Inc., supra, 448 F.2d at 689, this court approved jury instructions that “correctly stated the ultimate test. . that every offeree had to have information equivalent to that which a registration statement would disclose.” In subsequent cases we have adhered to that test. See Woolf v. S. D. Cohn & Co., supra, 515 F.2d at 613; SEC v. Continental Tobacco Co., supra, 463 F.2d at 158-61; Henderson v. Hayden, Stone Inc., supra, 461 F.2d at 1071. 11 Because the district court failed to apply this test to the case at bar, but *904 rather inferred from evidence of Doran’s sophistication that his purchase of a partnership share was incident to a private offering, we must remand so that the lower court may determine the extent of the information available to each offeree.

More specifically, we shall require on remand that the defendants demonstrate that all offerees, whatever their expertise, had available the information a registration statement would have afforded a prospective investor in a public offering. Such a showing is not independently sufficient to establish that the offering qualified for the private placement exemption, but it is necessary to gain the exemption and is to be weighed along with the sophistication and number of the offerees, the number of units offered, and the size and manner of the offering. See SEC v. Continental Tobacco Co., supra, 463 F.2d at 160; see also Woolf v. S. D. Cohn & Co., supra, 515 F.2d at 610-613. Because in this case these latter factors weigh heavily in favor of the private offering exemption, satisfaction of the necessary condition regarding the availability of relevant information to the offerees would compel the conclusion that this offering fell within the exemption.

The cornerstone of the regulatory structure envisaged by the authors of the Securities Act is disclosure. The Act is practical and pragmatic, not dogmatic and doctrinaire. It is designed to give a panoply of protection to the investor, but also to allow play in the marts of trade for offers of securities that do not require the oversight of the Securities and Exchange Commission. In suggesting the scope of that exemption, we cannot divine all the variables of a formula that might enable a trial court precisely to determine whether a given offering falls within or without its perimeter. There are few certitudes, and in interpreting the statute we must permit ourselves room for the ifs, the perhapses, and the maybes in commercial relationships and variegated investor postures. The question of exemption remains one of fact reserved in the first instance for the trial court. Nevertheless, it cannot be doubted that within or without the perimeter of the private offering exemption, the policies of the Securities Act mandate that the courts focus on the information available to the offerees of a security.

C. On Remand: The Issuer-Offeree Relationship

In determining on remand the extent of the information available to the offerees, the district court must keep in mind that the “availability” of information means either disclosure of or effective access to the relevant information. The relationship between issuer and offeree is most critical when the issuer relies on the latter route.

To begin with, if the defendants could prove that all offerees were actually furnished the information a registration statement would have provided, whether the offerees occupied a position of access pre-existing such disclosure would not be dispositive of the status of the offering. If disclosure were proved and if, as here, the remaining factors such as the manner of the offering and the investment sophistication of the offerees weigh heavily in favor of the private status of the offering, the absence of a privileged relationship between offeree and issuer would not preclude a finding that the offering was private. Any other conclusion would tear out of context this court’s earlier discussions of the § 4(2) exemption and would conflict with the policies of the exemption.

Alternatively it might be shown that the offeree had access to the files and record of the company that contained the relevant information. Such access might be afforded merely by the position of the offeree or by the issuer’s promise to open appropriate files and records to the offeree as well as to answer inquiries regarding material information. In either case, the relationship between offeree and issuer now becomes critical, for it must be shown that the offeree could realistically have been expected to take advantage of his access to ascertain *905 the relevant information. 12 Similarly the investment sophistication of the offeree assumes added importance, for it is important that he could have been expected to ask the right questions and seek out the relevant information.

In sum, both the relationship between issuer and offeree and the latter’s investment sophistication are critical when the issuer or another relies on the offeree’s “access” rather than the issuer’s “disclosure” to come within the exemption. We shall first show that this formulation is consistent with the current state of private offering law in this and other circuits. Second, we shall examine the misconception that our cases require a privileged or “insider” relationship between issuer and offeree as a necessary condition of coming within the § 4(2) exemption. Once the distinction between “access” and “disclosure” is fully recognized, our caselaw should not be construed to embody such a requirement.

1. Disclosure or access: a disjunctive requirement

That our cases sometimes fail clearly to differentiate between “access” and “disclosure” as alternative means of coming within the private offering exemption is, perhaps, not surprising. Although the Ralston Purina decision focused on whether the offerees had “access” to the required information, 346 U.S. at 127, 73 S.Ct. at 981, the holding that “the exemption question'turns on the knowledge of the offerees,” id. at 126, 73 S.Ct. at 981, could be construed to include possession as well as access. Such an interpretation would require disclosure as a necessary condition of obtaining a private offering notwithstanding the offerees’ access to the information that registration would have provided.

Both the Second and the Fourth Circuits, however, have interpreted Ralston Purina as embodying a disjunctive requirement. Thus, for example, in Gilligan, Will & Co. v. SEC, 267 F.2d 461, 466 (2nd Cir. 1959), cert. denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1960), the court observed that Ralston Purina “held that the governing fact is whether the persons to whom the offering is made are in such a position with respect to the issuer that they either actually have such information as a registration would have disclosed, or have access to such information.” See also SEC v. Tax Service, Inc., 357 F.2d 143, 144 (4th Cir. 1966). 13

The cases in this circuit are not inconsistent with this view. In Woolf v. S.D. Cohn & Co., supra, 515 F.2d at 612-13, we admittedly read Continental as “requiring that there be disclosure of the information registration would have revealed to each offeree . .” Because the court in Continental found neither disclosure to all offerees of the information registration would provide nor their access to such information, however, the case does not hold that when sophisticated offerees have access to the requisite information by virtue of their privileged relationship to the issuer, actual disclosure is nonetheless necessary. Only if the defendants in Continental had demonstrated that all offerees were sophisticated and that all had access to the relevant information, but the court had nevertheless required actual disclosure, could Continental foreclose the view we express in the case at bar.

Similarly, in Woolf we found that because it was not clear “what information was disclosed to whom at what time,” we were obliged to remand the case. Because the defendants in Woolf did not argue that *906 the offerees’ access to information qualified the offering for private status even without actual disclosure, we did not and could, not hold that disclosure was the only means of coming within the exemption.

Woolf refers to Rule 146 as a “useful frame of reference to an appellate court in assessing the validity of § 4(2) exemptions claimed . . . prior to its effective date.” 515 F.2d at 612. Since Woolf elsewhere notes specifically that Rule 146 would permit the issuer to show either access or disclosure, 14 it is inconceivable that the court in Woolf would establish more stringent requirements for this circuit or would interpret Continental to establish such requirements. 15 Rather, Woolf observes correctly that Rule 146 does not purport to be an exclusive definition of the circumstances under which the exemption is available, implying that there will be a class of placements that do not satisfy the more stringent criteria of the Rule 146 safe harbor but are nevertheless to be accorded private status. Id. at 612. 16

Although Rule 146 cannot directly control the case at bar, we think its disjunctive requirement that the private offering claimant may show either “access” or “disclosure” expresses a sound view that this court has in fact implicitly accepted. For example, in Hill York Corp. v. American International Franchises, Inc., supra, 448 F.2d at 690-91, this court thought it necessary to show that the offerees neither possessed the information registration would afford nor had access to such information. See also 1 Loss, Securities Regulation 657 n.53 (2d ed. 1961), quoted in Hill York, supra, 448 F.2d at 698. And in Henderson v. Hayden, Stone Inc., supra, 461 F.2d at 1072, the court clearly separates the questions: “Did [the offerees] possess the same information as would be found in a registration statement? Did they have access to such information?” 17

2. The role of insider status

Once the alternative means of coming within the private placement exemption are clearly separated, we can appreciate the proper role to be accorded the requirement that the offerees occupy a privileged or “insider” status relative to the issuer. That is to say, when the issuer relies on “access” absent actual disclosure, he must show that the offerees occupied a privileged position relative to the issuer that afforded them an opportunity for effective access to the information registration would otherwise provide. 18 When the *907 issuer relies on actual disclosure to come within the exemption, he need not demonstrate that the offerees held such a privileged position. Although mere disclosure is not a sufficient condition for establishing the availability of the private offering exemption, and a court will weigh other factors such as the manner of the offering and the investment sophistication of the offerees, the “insider” status of the offerees is not a necessary condition of obtaining the exemption.

Because the line between access and disclosure has sometimes been obscured, some have interpreted this court’s decision in Continental as limiting the § 4(2) exemption to insider transactions. 19 As we pointed out in our recent decision in Woolf, however, such fears are unfounded. 515 F.2d at 610.

The language from Continental that gave rise to those fears consists in the court’s findings that “Continental did not affirmatively prove that all offerees of its securities had received both written and oral information conc