Opinion
Docket No. 77-1017.
Decided October 3, 1978.
Dickinson, Wright, McKean, Cudlip Moon (by J. Bryan Williams and Shelley D. Roberts), for plaintiff.
Bodman, Longley, Bogle Dahling (by Richard D. Rohr and James J. Walsh), for defendant.
Before: R.B. BURNS, P.J., and BRONSON and D.F. WALSH, JJ.
Plaintiff filed a complaint in circuit court alleging that it had purchased 1000 shares of American Agronomics Corporation stock on account for defendant, and was owed $15,270 for the stock. Defendant answered, and counterclaimed, alleging he was injured through plaintiff's mishandling of the transaction. The trial court granted plaintiff's motion for accelerated judgment on the counterclaim, upon determining that it lacked subject matter jurisdiction over the claim.
Defendant moved for leave to file an amended counterclaim. In the amended counterclaim defendant alleges that he was without knowledge of the law and rules regarding purchase of securities, and that plaintiff's agents had alleged that they had expertise in the purchase of securities and related matters. Defendant further alleges that plaintiff was a member of the New York Stock Exchange and American Stock Exchange, and subject to exchange rules that it know the essential facts about each customer and order; that plaintiff knew or should have known that defendant's sister and brother-in-law were major stockholders in American Agronomics Corporation, and as a consequence defendant might be required to file a schedule 13-D with the Securities and Exchange Commission in connection with the purchase, and be restricted in reselling the stock. Defendant alleges that plaintiff had a duty to advise defendant of the legal ramifications of the purchase, to file a schedule 13-D, or to consult with an attorney; failed to so advise; and as a result, defendant has been sued by the Securities and Exchange Commission and various other parties, has been enjoined from selling his stock as it has declined in value, and has been subjected to adverse publicity.
Defendant's motion for leave to file an amended counterclaim was denied by the trial court. Defendant appealed, and this Court remanded to the trial court with instructions to set forth the reasons for the denial of defendant's motion. Ben P Fyke Sons v Gunter Co, 390 Mich. 649, 656-657; 213 N.W.2d 134, 137 (1973). The trial court filed an opinion explaining that it had denied the motion because the amended counterclaim was legally insufficient on its face, and amendment would, therefore, be futile. Ben P Fyke Sons v Gunter Co, supra. The trial court reasoned that the duty alleged to have been breached by plaintiff derives from exchange rules rather than common law, and therefore exclusive jurisdiction over the claim resides in Federal courts. 15 U.S.C. § 78aa. We reverse.
15 U.S.C. § 78aa provides in part that,
"[t]he district courts of the United States, and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder".
However,
"[t]he rights and remedies provided by this chapter shall be in addition to any and all other rights and remedies that may exist at law or in equity * * *". 15 U.S.C. § 78bb.
Thus, if the duty alleged to have been violated by plaintiff was created by the Securities Exchange Act of 1934 or "the rules and regulations thereunder", and does not exist "at law or in equity", the Federal courts have exclusive jurisdiction.
"This is not meant to suggest that it was the intent of Congress, in enacting the statute in question, to preempt common-law rights which might have been fully adjudicated and enforced in a State court before the act was passed. A more likely construction of the statute is that it confers exclusive jurisdiction on Federal courts to entertain only those actions which involve some right of recovery which goes beyond such common-law rights. * * * Both State and Federal courts recognize that a common-law action giving rise to a private civil remedy enforcible in the State courts may arise out of violations of the provisions of the act * * *." McCollum v Billings, 53 Misc.2d 661, 664-665; 279 N.Y.S.2d 609, 614 (Sup Ct, 1967). (Citation omitted.)
"[R]ules and regulations thereunder", 15 U.S.C. § 78aa, refers to Securities and Exchange Commission rules, not stock exchange rules. Starkman v Seroussi, 377 F. Supp. 518, 523 (SD NY, 1974). However, stock exchange rules are promulgated as a condition of registration, 15 U.S.C. § 78f(d), and may amount to a substitute for regulation by the Securities and Exchange Commission. Colonial Realty Corp v Bache Co, 358 F.2d 178, 182 (CA 2, 1966), cert den, 385 U.S. 817; 87 S Ct 40; 17 L Ed 2d 56 (1966), Starkman v Seroussi, supra. Depending upon the rule and the circumstances, a violation of an exchange rule may be actionable as a violation of a "duty created by this chapter", 15 U.S.C. § 78aa. Starkman v Seroussi, supra.
In determining whether violation of a stock exchange rule is actionable under Federal law,
"the court must look to the nature of the particular rule and its place in the regulatory scheme, with the party urging the implication of a federal liability carrying a considerably heavier burden of persuasion than when the violation is of the statute or an SEC regulation. The case for implication would be strongest when the rule imposes an explicit duty unknown to the common law." Colonial Realty Corp v Bache Co, supra, 182.
In part this reluctance to find per se Federal liability for violation of exchange rules is due to the unlikelihood that Congress intended to create a new body of Federal broker-customer law, thereby stripping state courts of the power to adjudicate claims between brokers and customers. Colonial Realty Corp, supra at 183.
The exchange rules relied upon by defendant in his counterclaim require members of the exchanges to use due diligence to learn the essential facts relative to every customer and order. New York Exchange Rule 405, American Stock Exchange Rule 411. Although Federal courts are split on the issue of whether violation of Rule 405, and by implication Rule 411, may ever state a cause of action, compare Buttrey v Merrill Lynch, Pierce, Fenner Smith, Inc, 410 F.2d 135, 142-145 (CA 7, 1969), cert den, 396 U.S. 838; 90 S Ct 98; 24 L Ed 2d 88 (1969), with Nelson v Hench, 428 F. Supp. 411, 417-420 (D Minn, 1977), it is clear that violations of Rule 405 are not per se actionable. Rather, because the Securities Exchange Act is directed to fraud, not mere negligence, the facts involved in the rule violation must minimally be "tantamount to fraud" to state a Federal cause of action. See Buttrey, supra at 143, Wells v Blythe Co, Inc, 351 F. Supp. 999 (ND Cal, 1972), Hecht v Harris, Upham Co, 283 F. Supp. 417, 430 (ND Cal, 1968), aff'd as modified, 430 F.2d 1202 (CA 9, 1970).
Defendant's counterclaim alleges negligence, not fraud. As a consequence, Federal courts do not have exclusive jurisdiction over the counterclaim.
Plaintiff argues that the counterclaim fails to state a cause of action under state law, first, because there are no prior cases stating that a broker owes its customers a duty to advise of legal complications involved in a stock transaction, and second, such a duty would amount to a requirement that it engage in the unauthorized practice of law.
"`The court should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader's suppositions.'" Crowther v Ross Chemical Manufacturing Co, 42 Mich. App. 426, 430; 202 N.W.2d 577, 580 (1972), quoting 5 Wright Miller, Federal Practice Procedure, § 1357, p 603.
The absence of prior reported cases on broker negligence certainly does not mean brokers are under no duty to their customers to refrain from careless infliction of injury. Rather, plaintiff's objection that it is under no duty to warn about the legal implications of a purchase, to file a schedule 13-D, or consult an attorney really goes to the issue of specific standard of care, not duty, and is properly a question for a jury. Moning v Alfono, 400 Mich. 425; 254 N.W.2d 759 (1977). We need not discuss at this point the extent of advice regarding legal complications about which a broker might be required to give a client in light of the unauthorized practice statute, MCL 600.916; MSA 27A.916, since defendant has alleged that plaintiff failed to advise him to consult an attorney, which would clearly not be unauthorized practice.
Reversed and remanded.