Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 62, 95 S.Ct. 2069, 2078, 45 L.Ed.2d 12 (1975). Given this direction by the Supreme Court, lower courts have held that an issuer-corporation has standing under the Williams Act to seek various remedies, including injunctive relief. See, e.g., Florida Commercial Banks, 772 F.2d at 1517; Gearhart Industries, Inc. v. Smith International, Inc., 741 F.2d 707, 714-15 (5th Cir. 1984); Pacific Realty Trust v. APC Investments, Inc., 685 F.2d 1083 (9th Cir. 1982); Milstein v. Huck, 600 F. Supp. 254, 263 (E.D.N Y 1984). In the Florida Commercial Banks case, the Eleventh Circuit established a balancing test to determine whether a target corporation has standing to pursue a private cause of action under the Williams Act:
We see no reason, even though we have upheld the district court's decision that Drexel is to be considered a bidder, to require a full Schedule 14D-1 disclosure in the exercise of the court's equitable power. We agree with the court in Pacific Realty Trust v. APC Investments, Inc., 685 F.2d 1083, 1086 (9th Cir. 1982), that a curative disclosure is sufficient. See also Riggs Nat'l Bank v. Allbritton, 516 F. Supp. 164, 182 (D.D.C. 1981).
This circuit, without extensive discussion, has allowed suits for private enforcement of section 14(e). See Pacific Realty Trust v. APC Investments, Inc., 685 F.2d 1083 (9th Cir. 1982) (allowing target company to bring private suit under section 14(e) for injunctive relief against offeror corporation); Polinsky v. MCA Inc., 680 F.2d 1286, 1291 (9th Cir. 1982) (holding that shareholders had standing to allege violation of section 14(e)); accord Gearhart Industries, Inc. v. Smith International, Inc., 741 F.2d 707, 714 (5th Cir. 1984); contra Liberty National Insurance Holding Co. v. Charter Co., 734 F.2d 545, 568-71 (11th Cir. 1984). It may well be that Congress desired to protect, among others, shareholder-offerees who decided not to tender their stock due to fraudulent misrepresentations by persons opposed to a takeover attempt.
Every other circuit which has addressed this question has held that an issuer has standing under the Williams Act to seek corrective disclosures from a tender offeror who has filed false and misleading disclosure statements. See, e.g., General Aircraft Corp. v. Lampert, 556 F.2d 90 (1st Cir. 1977); GAF Corp. v. Milstein, 453 F.2d 709 (2d Cir. 1971); Dan River, Inc. v. Unitex, Ltd., 624 F.2d 1216 (4th Cir. 1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981); Indiana National Corp. v. Rich, 712 F.2d 1180 (7th Cir. 1983); Chromalloy American Corp. v. Sun Chemical Corp., 611 F.2d 240 (8th Cir. 1979); Pacific Realty Trust v. APC Investments, Inc., 685 F.2d 1083 (9th Cir. 1982). By providing issuers with this cause of action to enforce the Williams Act, this Court does not intend to allow the directors of corporations, who clearly have an economic interest in protecting their own positions, to use corporate resources simply to harass and burden aggressive outsiders.
Smallwood v. Pearl Brewing Company, 489 F.2d 579, 596 (5th Cir. 1974). Other circuits have extended this private right of action under 14(e) to include injunctive relief. Pacific Realty Trust v. APC Investments, Inc., 685 F.2d 1083, 1085 (9th Cir. 1982); Prudent Real Estate Trust v. Johncamp Realty, Inc., 599 F.2d 1140, 1148-49 (2d Cir. 1979). Additionally, we are persuaded by the reasoning of our Brother Higginbotham, then sitting on the district bench, in two careful opinions upholding a private right of action for 14(e) violations.
Similarly, a private right of action for target companies under Section 14(a) ensures that this Section remains an effective deterrent to misstatements in Proxy statements. See, e.g. Dan River., Inc. v. Unitex, Ltd., 624 F.2d 1216 (4th Cir. 1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981); Indiana National Corp. v. Rich, 712 F.2d 1180 (7th Cir. 1983); Chromalloy American Corp. v. Sun Chemical Corp., 611 F.2d 240 (8th Cir. 1979); Pacific Realty Trust v. APC Investments, Inc., 685 F.2d 1083 (9th Cir. 1982); Florida Commercial Banks v. Culverhouse, 772 F.2d 1513 (11th Cir. 1985). Defendants reliance of Liberty National Ins. Holding Co. v. Charter Co., 734 F.2d 545 (11th Cir. 1984), is misplaced.
Eli Lilly Co. v. Premo Pharmaceutical Laboratories, 630 F.2d 120, 136 (3d Cir. 1979), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). As a remedy for defects in tender offers, injunctions may often play a supporting role, and the courts will not hesitate to enjoin the tender offer until compliance with the securities laws can be determined. Pacific Realty Trust v. APC Investments, Inc., 685 F.2d 1083, 1086 (6th Cir. 1982). As alternative remedies, a court may also require curative disclosure, a permanent injunction in order to punish and deter intentional violations of the securities laws, or a permanent injunction if there are manipulative acts that cannot be cured through disclosure.
1983) (merely allowed the defendants to assert as an affirmative defense to an antitrust action the fact that the defendants anticompetitive actions were justified under the CBCA); Citizens First Bancorp, Inc. v. Harreld, 559 F. Supp. 867, 873-74 (W.D.Ky. 1982) (suit alleged violations of the 60-day notice provision, but the court found no violation and did not address the question of whether a private right of action existed); and Riggs National Bank v. Allbritton, 516 F. Supp. 164, 175-80 (D.D.C. 1981) (also did not expressly consider whether a private cause of action was properly entertained). Moreover, plaintiff's citation of Pacific Realty Trust v. APC Investments, Inc., 685 F.2d 1083, 1087 (9th Cir. 1982) as supporting authority, a case which, again, did not address the issue of the propriety of private enforcement actions for violations of the CBCA, is undermined by the fact that the Ninth Circuit expressly rejected a private right of action six years earlier in Harmsen v. Smith, 542 F.2d 496, 505 (9th Cir. 1976), cert. denied, 464 U.S. 822, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983). Both the O'Brien and Lowder opinions concluded that bank holding companies (basically shareholders) are the intended beneficiaries of the CBCA act, thereby satisfying the first factor in the Cort v. Ash determination.
Finally, I find that Mesa II has failed to make the essential showing that it will suffer irreparable harm. Rondeau, 422 U.S. at 61, 95 S.Ct. at 2077; Pacific Realty Trust v. APC Inv., Inc., 685 F.2d 1083, 1086 n. 5 (9th Cir. 1982). It is clear that any loss of premium is both calculable and monetarily compensable, should Mesa II prevail on the merits.
Injunctive relief may be appropriate pending determination whether federal law requires additional disclosures or until all necessary information is disclosed. See Pacific Realty Trust v. APC Investments, 685 F.2d 1083 (9th Cir. 1982); Whittaker Corporation v. Edgar, 535 F. Supp. 933 (D.C.Ill. 1982). The act provides in pertinent part: It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request or invitation.