Michael E. Moss v. Morgan Stanley Inc., E. Jacques Courtois, Jr., Adrian Antoniu, and James M. Newman, Morgan Stanley Inc. And James M. Newman

This appeal spotlights two issues of significance for the litigation of federal securities fraud claims: (1) whether a shareholder who unwittingly sold stock of a “target” company on the open market prior to public announcement of a tender offer has a cause of action for damages under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1976) (the 1934 Act), and rule 10b-5, 17 C.F.R. § 240.10b-5 (1982) promulgated thereunder against a person who purchased “target” shares on the basis of material nonpublic information which he acquired from the tender offeror’s investment adviser; and (2) whether this same unwitting shareholder can recover treble damages under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (1976 & Supp. Ill 1979) (RICO), on the ground that he was injured by an unlawful “enterprise” conducting a “pattern of racketeering activity” comprised of “fraudulent” securities transactions.

The district court held that the shareholder failed to state a cause of action under both the 1934 Act and RICO. We agree for the reasons stated below.

Affirmed.

BACKGROUND

The chain of events that culminated in this action began in the latter months of 1976 with tender offer discussions between Warner-Lambert Company (Warner) and Deseret Pharmaceutical Company (Deseret). On November 23, 1976 Warner retained the investment banking firm of Morgan Stanley & Co. Incorporated, a subsidiary of Morgan Stanley Inc. (Morgan Stanley), to assess the desirability of acquiring Deseret, to evaluate Deseret’s stock and to recommend an appropriate price per share for the tender offer.

One of the individual defendants in this action, E. Jacques Courtois, Jr., was then employed by Morgan Stanley in its mergers and acquisitions department. In that capacity Courtois acquired knowledge of Warner’s plan to purchase Deseret stock. On November 30, 1976 Courtois informed defendant Adrian Antoniu, an employee of Kuhn Loeb & Co., of the proposed tender offer and urged him to purchase Deseret stock. Antoniu in turn informed James M. Newman, a stockbroker, that Warner intended to bid for Deseret. Pursuant to an agreement with Antoniu and Courtois, Newman purchased 11,700 shares of Deseret stock at approximately $28 per share for his and their accounts. Newman also advised certain of his clients to buy Deseret stock.

Trading was active in Deseret shares on November 30, 1976, with approximately 143,000 shares changing hands. Michael E. Moss, the plaintiff in this action, was among the active traders, having sold 5,000 shares at $28 per share. On the following day, December 1,1976, the New York Stock Exchange halted trading in Deseret stock pending announcement of the tender offer. Trading remained suspended until December 7, 1976 when Warner publicly announced its tender offer for Deseret stock at $38 per share. Newman and the other defendants tendered their shares to Warner and reaped a substantial profit.

On August 5, 1982 Moss commenced this action on his own behalf and on behalf of the class of investors who sold stock in Deseret on November 30, 1976. 1 He contended that “members of the class have been substantially damaged in that they sold Deseret stock prior to the public announcement of the Warner tender offer at prices substantially below [those] offered by Warner.” J.App. at 11. The amended complaint stated three causes of action: (1) Moss sought to recover damages from Newman for allegedly violating section 10(b) of the 1934 Act and rule 10b-5 thereunder by purchasing Deseret shares with knowledge of the imminent tender offer and without disclosing such information to Deseret *9 shareholders; 2 (2) Moss sought to recover damages from Morgan Stanley on the ground that as a “controlling person” under section 20(a) of the 1934 Act, 15 U.S.C. § 78t(a) (1976), Morgan Stanley should be derivatively liable for Courtois’ wrongdoing; 3 and (3) pursuant to RICO, 18 U.S.C. § 1964(c) (1976), Moss sought to recover treble damages from Newman on the ground that he engaged in “at least two acts of fraud in connection with the purchase and sale of securities and as such [his actions represented] a pattern of racketeering activity within the meaning of RICO.” 4 J.App. at 11.

In September 1982 Newman moved pursuant to Fed.R.Civ.P, 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief could be granted. Shortly thereafter, defendant Morgan Stanley filed a rule 12(b)(6) motion to dismiss, alternatively styled as a Fed.R.Civ.P. 56 motion for summary judgment, and also requested attorneys’ fees and costs pursuant to Fed.R. Civ.P. 11. The United States District Court for the Southern District of New York, Pollack, J., granted both defendants’ motions to dismiss, defendant Morgan Stanley’s Rule 56 motion 5 and awarded costs to both defendants. Moss v. Morgan Stanley Inc., 553 F.Supp. 1347, 1352 (S.D.N.Y.1983). Although we disagree with several of the reasons advanced by the district court for dismissing plaintiff’s RICO claim, we affirm the judgment dismissing the complaint and awarding costs to both defendants. 6

*10 DISCUSSION

I. Section 10(b) Liability 7

A. Introduction

It is well settled that traditional corporate “insiders”- — directors, officers and persons who have access to confidential corporate information 8 — must preserve the confidentiality of nonpublic information that belongs to and emanates from the corporation. 9 Consistent with this .duty, the *11 “insider” must either disclose nonpublic corporate information or abstain from trading in the securities of that corporation. See SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 848 (2d Cir.1968) (en banc), cert. denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558 (1971); accord Radiation Dynamics, Inc. v. Goldmuntz, 464 F.2d 876, 890 (2d Cir.1972) (“The essential purpose of Rule 10b-5 ... is to prevent corporate insiders and their tippees from taking unfair advantage of the uninformed outsiders.”). The individual defendants in this case — Courtois, Antoniu and Newman — having acquired confidential information through Warner’s investment adviser and having no direct relationship with Deseret, could not be traditional corporate “insiders.”

However, in a number of decisions the Supreme Court has extended the “duty of disclosure” requirement to nontraditional “insiders” — persons who have no special access to corporate information but who do have a special relationship of “trust” and “confidentiality” with the issuer or seller of the securities. See, e.g., Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972) (bank employees who purchased shares in a tribal trust fund from mixed-blood Ute Indians without disclosing that there was a secondary market for shares at higher prices among non-Indians); SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963) (investment adviser who purchased stock for his own account just before publishing a recommendation that his clients buy the stock); see also Zweig v. Hearst Corp., 594 F.2d 1261 (9th Cir.1979) (financial columnist); Lewelling v. First California Co., 564 F.2d 1277 (9th Cir.1977); Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275 (2d Cir.1975); Flynn v. Bass Brothers Enterprises, 456 F.Supp. 484 (E.D.Pa.1978). Moss sought to include the defendants in this category of nontraditional “insiders” and argued that they necessarily violated section 10(b) and rule 10b-5 by purchasing Deseret stock without publicly disclosing their knowledge of the impending tender offer. After finding that none of the defendants occupied a position of “trust” with respect to Moss, the *12 district court held that none of the defendants owed him such a “duty of disclosure.” In light of the Supreme Court’s decisions in Chiarella v. United States, 445 U.S. 222,100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), and Dirks v. SEC, - U.S. -, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983), which recently articulated the standard for analyzing violations of section 10(b) and rule 10b-5, we agree with the district court’s dismissal of plaintiff’s federal securities law claim.

B. Chiarella v. United States

In Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), an employee of a New York financial printer deduced the identity of corporate takeover targets from the confidential offering documents prepared by his firm. Without disclosing his knowledge of the acquiring company’s plans, Chiarella purchased stock in the target companies and sold it at'a substantial profit immediately after public announcement of the takeovers. Id. at 224, 100 S.Ct. at 1112. He was indicted and convicted of violating section 10(b) of the 1934 Act and rule 10b-5. A divided Court of Appeals affirmed the conviction. United States v. Chiarella, 588 F.2d 1358 (2d Cir. 1978) (Meskill, J., dissenting).

The Supreme Court reversed, stating that:

In this case, the petitioner was convicted of violating § 10(b) although he was not a corporate insider and he received no confidential information from the target company. Moreover, the “market information” upon which he relied did not concern the earning power or operations of the target company, but only the plans of the acquiring company. Petitioner’s use of that information was not a fraud under § 10(b) unless he was subject to an affirmative duty to disclose it before trading.

Chiarella v. United States, 445 U.S. at 231, 100 S.Ct. at 1116 (emphasis added) (footnote omitted); see Dirks v. SEC, - U.S. at -, 103 S.Ct. at 3261. The Court explained that liability for nondisclosure of material nonpublic market information under section 10(b) is “premised upon a duty to disclose arising from a relationship of trust and confidence between parties to a transaction.” Id. at 230, 100 S.Ct. at 1115. Absent an “insider” or “fiduciary” relationship with the sellers of stock, a purchaser has no duty to disclose nonpublic market information. Id. at 229,100 S.Ct. at 1115 (citing with approval General Time Corp. v. Talley Industries, Inc., 403 F.2d 159, 164 (2d Cir.1968), cert. denied, 393 U.S. 1026, 89 S.Ct. 631, 21 L.Ed.2d 570 (1969) (“We know of no rule of law ... that a purchaser of stock, who was not an ‘insider’ and had no fiduciary relation to a prospective seller, had any obligation to reveal circumstances that might raise a seller’s demands and thus abort the sale.”)); see also Polinsky v. MCA Inc., 680 F.2d 1286, 1290 (9th Cir.1982) (“[A] purchaser of stock who has no fiduciary relationship to the prospective seller of the stock and who owns less than five percent of the target companies’ stock has no duty to disclose circumstances that will insure the purchaser pays the highest possible price for the stock.”); Staffin v. Greenberg, 672 F.2d 1196, 1201-02 (3d Cir.1982).

The Court concluded unequivocally that Chiarella owed no duty of disclosure:

[T]he element required to make silence fraudulent — a duty to disclose — is absent in this case. No duty could arise from petitioner’s relationship with the sellers of the target company’s securities, for petitioner had no prior dealings with them. He was not their agent, he was not a fiduciary, he was not a person in whom the sellers had placed their trust and confidence. He was, in fact, a complete stranger who dealt with the sellers only through impersonal market transactions.

Chiarella v. United States, 445 U.S. at 232-33, 100 S.Ct. at 1116-17.

C. Application of Chiarella

In applying Chiarella’s “fiduciary standard” to this case, Judge Pollack concluded that Newman owed no “duty of disclosure” to plaintiff Moss and hence could not be liable for a section 10(b) or rule *13 10b-5 violation. 553 F.Supp. at 1352-53. We agree. Like Chiarella, both Courtois and Newman were “complete stranger[s] who dealt with the sellers [of Deseret stock] only through impersonal market transactions.” Chiarella v. United States, 445 U.S. at 232-33, 100 S.Ct. at 1117. However, in this appeal plaintiff continues to insist, arguendo, that if civil “liability is premised upon a duty to disclose arising from a relationship of trust and confidence between parties to a transaction,” then he occupied such a position of “trust” with respect to the defendants. He suggests three sources for the defendants’ “duty of disclosure.”

1. United States v. Newman

Moss first argues that because Courtois owed a “fiduciary duty” to his employer, Morgan Stanley, and' to Morgan Stanley’s client, Warner, then Newman (standing in Courtois’ shoes) owed a separate duty of disclosure to Deseret shareholders. Plaintiff claims that our decision in United States v. Newman, 664 F.2d 12 (2d Cir. 1981), aff’d after remand, 722 F.2d 729 (2d Cir. 1983) (unpublished order), cert. denied, - U.S. -, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983), supports this circuitous linking of liability. We disagree.

In Newman we held that Courtois’ and Antoniu’s securities transactions constituted a breach of their fiduciary duty of confidentiality and loyalty to their employers (Morgan Stanley and Kuhn Loeb & Co., respectively) and thereby provided the basis for criminal prosecution under section 10(b) and rule 10b-5. Indeed, the district court at Newman’s trial specifically charged the jury that “the law is clear that Mr. Newman had no obligation or duty to the people from whom he bought the stock to disclose what he had learned, and, thus, he could not have defrauded these people as a matter of law.” J.App. at 29-30. Nothing in our opinion in Newman suggests that an employee’s duty to “abstain or disclose” with respect to his employer should be stretched to encompass an employee’s “duty of disclosure” to the general public. In fact, we explicitly limited our holding in Newman by stating:

In two instances the targets themselves were clients of the investment banking firms. The Government belatedly suggests that the indictment should be construed to allege securities laws violations in these two instances, on the theory that the defendants, by purchasing stock in the target companies, defrauded the shareholders of those companies. Whatever validity that approach might have, it is not fairly within the allegations of the indictment, which allege essentially that the defendants defrauded the investment banking firms and the firms’ takeover clients.

United States v. Newman, 664 F.2d at 15 n. 1 (emphasis added). Thus, the district court was correct.in concluding that “plaintiff cannot hope to piggyback upon the duty owed by defendants to Morgan Stanley and Warner. There is no ‘duty in the air’ to which any plaintiff can attach his claim.” 553 F.Supp. at 1353.

2. “Insider” Trading

Plaintiff’s next attempt to find a source for Newman’s duty to disclose is to argue that Morgan Stanley and its employee Courtois were “insiders” of Deseret and therefore owed a duty to Deseret shareholders. Moss asserts that Morgan Stanley and Courtois were transformed into “insiders” upon their receipt of confidential information from Deseret during tender offer negotiations in this “friendly takeover.” Such an argument fails both as a matter of fact and law.

First, the complaint contains no factual assertions that Morgan Stanley or Courtois received any information from Deseret. Nor does it allege that Newman traded on the basis of information derived from the issuer or seller of Deseret stock. Rather, the complaint was premised solely on the theory that Newman traded on the basis of information originating from “Warner’s plan to acquire Deseret stock.” J.App. at 9.

*14 Yet, even if we overlook the complaint’s facial deficiencies, plaintiff’s theory fails as a matter of law. In Walton v. Morgan Stanley & Co., 623 F.2d 796 (2d Cir.1980), we held that an investment banker, representing an acquiring company, does not owe a fiduciary duty to the target simply because it received confidential information during the course of tender offer negotiations. In Walton, Kennecott Copper Corporation retained Morgan Stanley to advise it about the possible acquisition of Olinkraft, Inc. In the course of negotiations, Olinkraft furnished Morgan Stanley with “inside” information which was to be kept confidential. Although Kennecott ultimately elected not to bid, Morgan Stanley purchased Olinkraft shares for its own account based on the “confidential” information. In rejecting Olinkraft’s claim that Morgan Stanley violated section 10(b) by breaching a fiduciary duty owed to Olinkraft, we held that Morgan Stanley had engaged in arm’s length bargaining with the target. Morgan Stanley did not become the target’s fiduciary simply upon receipt of confidential information. We noted that “we have not found any [cases] that consider[] one in Morgan Stanley’s position [investment adviser to the “shark”] to stand in a fiduciary relationship to one in Olinkraft’s [the target].” Id. at 799; see Dirks v. SEC, - U.S. -,- n. 22,103 S.Ct. 3255, 3265 n. 22, 77 L.Ed.2d 911 (1983) (citing Walton with approval as “[a]n example of a case turning on the court’s determination that the disclosure did not impose any fiduciary duties on the recipient of the inside information”); see generally Frigitemp Corp. v. Financial Dynamics Fund, Inc., 524 F.2d 275, 278-79 (2d Cir.1975) (investment companies that traded on confidential information obtained in the course of negotiations for private placement of debentures owed no duty to the selling corporation).

Relying on Walton, Judge Pollack properly concluded that “unless plaintiffs can set forth facts that turn the negotiations from arm’s length bargaining into a fiduciary relationship, they cannot claim that Morgan Stanley owed them a fiduciary duty.” 553 F.Supp. at 1355. We recognize that with only “the complaint and the appellee’s motion to dismiss, we do not have the benefit of findings of fact about whatever communication occurred between Olinkraft [Deseret], the potential target, and Morgan Stanley, the financial advisor to the potential acquirer: how the communication proceeded, what understandings were reached, what assumptions or expectations the trade’s practice would justify.” Walton v. Morgan Stanley & Co., 623 F.2d at 798. Yet Moss’ complaint is patently deficient. It is barren of any factual allegations that might establish a fiduciary relationship between Morgan Stanley and Deseret. The complaint shows only that Morgan Stanley was retained by Warner and represented Warner’s interest in the tender offer negotiations with Deseret. The district court correctly found that the complaint did not allege a section 10(b) or rule 10b-5 claim premised on Morgan Stanley’s “insider” status.

3. Broker-Dealer Duty

Plaintiff’s final attempt to establish a cognizable duty between himself and the defendants is to argue that Newman violated rule 10b-5 because as a registered broker-dealer he owed a general duty to the market to disclose material nonpublic information prior to trading. Moss relies on the District of Columbia Circuit’s decision in Dirks v. SEC, 681 F.2d 824 (D.C.Cir.1982), rev’d on other grounds - U.S. -, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983), to support his argument. Such reliance is misplaced. In Dirks, the SEC censured a broker-dealer for tipping his clients about irregularities at Equity Funding Corporation of America before he publicly disclosed evidence of corporate fraud. The Circuit Court did not consider whether a broker-dealer’s nondisclosure of nonpublic information gives rise to civil liability under section 10(b) or rule 10b-5. In fact, the D.C. Circuit made clear that a “private action for damages might raise questions of standing, causation, and appropriate remedy not pertinent [in Dirks].” 681 F.2d at 839-40 n. 19. Moreover, in the Supreme Court’s recent reversal *15 of Dirks, the Court expressly declined to consider Judge Wright’s “novel theory” that “Dirks acquired a fiduciary duty by virtue of his position as an employee of a broker-dealer.” -U.S. at-n. 26,103 S.Ct. at 3267 n. 26. Therefore, neither the D.C. Circuit’s nor the Supreme Court’s decision in Dirks lends any support to the plaintiff’s argument.

We find nothing in the language or legislative history of section 10(b) or rule 10b-5 to suggest that Congress intended to impose a special duty of disclosure on broker-dealers simply by virtue of their status as market professionals. Cf. Dirks v. SEC, 681 F.2d at 840, 841 & n. 21 (Judge Wright reads the legislative history of the 1934 Act as providing that “securities professionals regulated by the Act would owe certain responsibilities to the public at large as well as to their clients.”). Indeed, to impose such a duty “could have an inhibiting influence on the role of market analysts, which the SEC itself recognizes is necessary to the preservation of a healthy market.” Dirks v. SEC,-U.S. at-& n. 17,103 S.Ct. at 3263 & n. 17.

Moreover, in Dirks v. SEC, - U.S. -, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983), the Supreme Court expressly reaffirmed its holding in Chiarella that “ ‘[a] duty [to disclose] arises from the relationship between parties ... and not merely from one’s ability to acquire information because of his position in the market.’ ” Id. at -, 103 S.Ct. at 3263 (quoting United States v. Chiarella, 445 U.S. at 232-33 & n. 14, 100 S.Ct. at 1116 & n. 14). The Court reexamined this “duty of disclosure:”

Under certain circumstances, such as where corporate information is revealed legitimately to an underwriter, accountant, lawyer, or consultant working for the corporation [Deseret’s advisers], these outsiders may become fiduciaries of the shareholders. The basis for recognizing this fiduciary duty is not simply that such persons acquired nonpublie corporate information, but rather that they have entered into a special confidential relationship in the conduct of the business of the enterprise and are given access to information solely for corporate purposes. See SEC v. Monarch Fund, 608 F.2d 938, 942 (CA2 1979); In re Investors Management Co., 44 S.E.C. 633, 645 (1971); In re Van Alstyne, Noel & Co., 43 S.E.C. 1080, 1084-1085 (1969); In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S.E.C. 933, 937 (1968); Cady, Roberts, 40 S.E.C., at 912.... For such a duty to be imposed, however, the corporation must expect the outsider to keep the disclosed nonpublic information confidential, and the relationship at least must imply such a duty.

Id.-U.S. at-n. 14,103 S.Ct. at 3261 n. 14 (emphasis added).

The defendants in this case — Courtois and his tippees Antoniu and Newman— owed no duty of disclosure to Moss. In working for Morgan Stanley, neither Courtois nor Newman was a traditional “corporate insider,” and neither had received any confidential information from the target Deseret. Instead, like Chiarella and Dirks, the defendants were “complete stranger[s] who dealt with the sellers [of Deseret stock] only through impersonal market transactions.” Chiarella v. United States, 445 U.S. at 232-33, 100 S.Ct. at 1117.

Since Moss failed to demonstrate that he was owed a duty by any defendant, he has failed to state a claim for damages under section 10(b) or rule 10b-5.

D. “Misappropriation” Theory of Disclosure

In addition to arguing that he satisfied the Chiarella “duty to disclose” standard, Moss alternatively argues that the district court misread Chiarella. He contends that Chiarella establishes only that “a duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information.” 445 U.S. at 235,100 S.Ct. at 1118. Moss urges us to recognize an exception to Chiarella and allow a section 10(b) cause of action against any person who trades on the basis of nonpublic “misappropriated” information.

*16 Both Moss and the SEC premise their “misappropriation” theory on Justice Burger’s dissent in Chiarella:

I would read § 10(b) and Rule 10b-5 to encompass and build on this principle: to mean that a person who has misappropriated nonpublic information has an absolute duty to disclose that information or to refrain from trading.

Id. at 240,100 S.Ct. at 1121; see id. at 239, 100 S.Ct. at 1120 (Brennan, J., concurring) (“a person violates § 10(b) whenever he improperly obtains or converts to his own benefit nonpublic information which he then uses in connection with the purchase or sale of securities”). In essence, Moss’ theory is that any person who “misappropriates” information owes a general duty of disclosure to the entire marketplace. He asserts that this Court’s recognition of the “misappropriation theory” is necessary to effectuate the remedial purposes of the securities laws. See generally Herman & MacLean v. Huddleston, - U.S. -, -, 103 S.Ct. 683, 686-87, 74 L.Ed.2d 548 (1983).

While we agree that the general purpose of the securities laws is to protect investors, the creation of a new species of “fraud” under section 10(b) would “depart[ ] radically from the established doctrine that duty arises from a specific relationship between two parties ... [and] should not be undertaken absent some explicit evidence of congressional intent.” Chiarella v. United States, 445 U.S. at 233, 100 S.Ct. at 1117. In speaking of the origins of the concept of “fraud” as embodied in the federal securities laws, the Supreme Court in Chiarella stated that:

At common law, misrepresentation made for the purpose of inducing reliance upon the false statement is fraudulent. But one who fails to disclose material information prior to the consummation of a transaction commits fraud only when he is under a duty to do so.

Id. at 227-28, 100 S.Ct. at 1114 (emphasis added).

In effect, plaintiff’s “misappropriation” theory would grant him a windfall recovery simply to discourage tortious conduct by securities purchasers. Yet, the Supreme Court has made clear that section 10(b) and rule 10b-5 protect investors against fraud; they do not remedy every instance of undesirable conduct involving securities. Id. at 232, 100 S.Ct. at 1116; Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 474-77, 97 S.Ct. 1292, 1301-03, 51 L.Ed.2d 480 (1977). As defendants owed no duty of disclosure to plaintiff Moss, they committed no “fraud” in purchasing shares of Deseret stock.

Moreover, the Court has refused to recognize “a general duty between all participants in market transactions to forgo actions based on material, nonpublic information.” Chiarella v. United States, 445 U.S. at 233, 100 S.Ct. at 1117. Rather, in Chiarella the Court stated that:

[N]either the Congress nor the Commission ever has adopted a parity-of-information rule....

... We hold that a duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information. The contrary result is without support in the legislative history of § 10(b) and would be inconsistent with the careful plan that Congress has enacted for regulation of the securities markets. Cf. Santa Fe Industries, Inc. v. Green, 430 U.S. at 479, 97 S.Ct. at 1304.

Id. at 233, 235, 100 S.Ct. at 1117, 1118 (emphasis added) (footnotes omitted). We find that plaintiff’s “misappropriation” theory clearly contradicts the Supreme Court’s holding in both Chiarella and Dirks and therefore conclude that the complaint fails to state a valid section 10(b) or rule 10b-5 cause of action.

II. Morgan Stanley’s Derivative Liability

Plaintiff claims that pursuant to section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(a) (1976), Morgan Stanley is a “controlling person” who should be found derivatively liable for the unlawful securities violations committed by its employees. Section 20(a) provides:

(a) Every person who, directly or indirectly, controls any person liable under • *17 any provision of this chapter or of any rule or regulation thereunder shal