Packer v. Raging Capital Management, LLC et al
Filing
62
ORDER denying 51 Motion for Summary Judgment; granting 53 Motion for Summary Judgment. For the reasons set forth in the attached memorandum of decision and order, defendants' motion for summary judgment is denied and plaintiff's motio n for summary judgment is granted. Judgment shall enter against defendant Master Fund in the amount of $4,909,395. The clerk of the court is directed to close this case. Ordered by Magistrate Judge Gary R. Brown on 8/20/2019. c/ecf (Gilpin, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
BRAD PACKER, derivatively on behalf of
1-800-FLOWERS.COM, INC.,
Plaintiff,
MEMORANDUM OF
DECISION & ORDER
15-CV-5933 (GRB)
-againstRAGING CAPITAL MANAGEMENT, LLC,
RAGING CAPITAL MASTER FUND, LTD,
WILLIAM C. MARTIN and
1-800-FLOWERS.COM, INC.,
Defendants.
--------------------------------------------------------------X
GARY R. BROWN, United States Magistrate Judge:
Pending before the Court in this shareholder derivative action seeking recovery of short
swing profits are cross-motions for summary judgment brought by plaintiff Brad Packer,
derivatively on behalf of 1-800-Flowers.com, Inc. (“Flowers”), and defendants Raging Capital
Management, LLC, (“RCM”), Raging Capital Master Fund, Ltd. (“Master Fund”), and William C.
Martin (together the “Raging Capital defendants”). Because, as discussed herein, defendant Master
Fund, which is entitled to none of the exemptions to the short swing profit rules, held beneficial
ownership of in excess of ten percent of the outstanding shares of Flowers, plaintiff’s motion for
summary judgment is hereby GRANTED.1
BACKGROUND
In March 2017, this Court issued a Memorandum and Order denying defendants’ motions
1
While plaintiff moved solely for summary judgment as to Master Fund, the parties agreed at
oral argument that, as defendants all held interests in essentially the same shares, judgment
against Master Fund alone would be coextensive with judgment against all defendants.
1
to dismiss and for summary judgment, familiarity with which is assumed and is hereby
incorporated by reference. See Packer v. Raging Capital Mgmt., LLC, 242 F. Supp. 3d 141, 143
(E.D.N.Y. 2017) (“Flowers I”). The motion practice surrounding that Memorandum defined
several issues that remained to be explored during discovery, including “purchases and sales made
by Defendants in Flowers equity securities during the period April 30, 2014 to January 31, 2015.”
See, e.g., DE 34-7 at ¶ 8(e) (declaration filed pursuant to Fed. R. Civ. P. 56(d)). The parties
completed discovery prior to the filing of the instant motions.
Discovery seems to have proved fruitful as the parties have presented information
previously unrevealed to this Court. Most importantly, Master Fund, an entity which qualifies
neither as a Registered Investment Advisor (“RIA”) nor a control person, held more than ten
percent of the outstanding shares of Flowers. See DE 54-4 (Flowers Schedule 13-G dated April
30, 2014, reporting “shared” beneficial ownership, voting power and dispositive power over
10.3% of Flowers shares); DE 54-5 (Flowers Schedule 13-G dated June 30, 2014, reporting
15.6% shared ownership); DE 54-6 (Flowers Schedule 13-G dated December 31, 2014, reporting
11.1% shared ownership); DE 54-7 (Flowers Schedule 13-G dated January 31, 2015, reporting
10.5% shared ownership). This fact substantially simplifies the issues before the Court and, for
the reasons discussed herein, summary judgment is warranted as to plaintiff’s claims against
Master Fund. Furthermore, because the parties agree that the damages as against Master Fund are
coextensive with those that could potentially be recovered against the codefendants, this
conclusion effectively resolves this action.
STANDARD OF REVIEW
These motions for summary judgment are considered under the oft-repeated and well
understood standard for review of such matters, as discussed in Bartels v. Inc. Vill. of Lloyd
2
Harbor, 97 F. Supp. 3d 198, 211 (E.D.N.Y. 2015), aff'd sub nom. Bartels v. Schwarz, 643 F.
App’x 54 (2d Cir. 2016), which discussion is incorporated by reference herein.2
DISCUSSION
As noted in Flowers I, much of the litigation focused on whether the defendants,
considered together, constituted “a group for purposes of determining beneficial ownership under
§§ 13(d)(3) and 16(b) of the Exchange Act,” meaning that “the shares held by persons in such a
group are aggregated to determine whether the group has a greater than 10% beneficial ownership
in the issuing corporation.” Flowers I, 242 F. Supp. 3d at 144. On this motion, however, the
parties do not dispute that Master Fund held, on its own, in excess of 10% of the shares, so the
question of aggregation no longer need be considered. See DE 51-1 at 12, n. 4 (noting “no
holdings need to be aggregated because it is undisputed that there was a single block of shares in
the name of [sic] single shareholder that alone exceeded 10%”); DE 61 at 7 (“Master Fund . . .
had legal title to in excess of 10%”). And while the parties spilled much ink arguing whether the
interrelationships between Martin (the “control person”), RCM (the registered investment
advisor) and Master Fund vitiate the exemptions claimed by Martin and RCM under 17 C.F.R.
§240.16(a)(1)(v) and (vii), those questions no longer need be resolved here.
Defendants, however, now adopt a more nuanced argument. Defendants contend, in sum
and substance, that because Martin, RCM and Master Fund held ownership interests in the very
same shares, the exemptions enjoyed by Martin and RCM effectively immunize those shares from
short swing profit liability. This concept is predicated upon an exegesis of certain language from
the district court decision in Egghead, to wit:
2
At oral argument, counsel for defendants conceded that the standing argument made in this case
is inconsistent with existing Second Circuit law, effectively withdrawing that argument. DE 61
at 18–19.
3
[S]hares held by an exempt person or institution are themselves exempt from
Section 16. As explained by the district court, “Rule 16a-1(a)(1) clearly expresses
an intent to exclude certain institutions and persons as well as a particular class of
securities held by them from counting towards the ten percent holder threshold.”
Brookhaven, 113 F. Supp. 2d at 624; see also id. at 618 (“[O]nly certain securities
….qualify to be counted towards the ten percent threshold. Others are exempt.”); id.
at 626 (Rule 16a-1(a)(1) creates an “exemption for certain securities”).
DE 55 at 13–14 (emphases as in brief, though not in court decision). Despite defendants’ attempt
to garb this concept in Second Circuit authority, nothing in the Second Circuit decision supports
the notion that shares held by non-exempt entities are somehow subject to exemption under Rule
16a-1 if held jointly with an exempt entity. In Egghead, the Second Circuit reached a conclusion
that could well be described as the contrapositive of the proposition posited by defendants: that
an exempt entity is not the beneficial owner of shares that it holds on behalf of its customers.
Egghead.com, Inc. v. Brookhaven Capital Mgmt. Co., 340 F.3d 79, 85 (2d Cir. 2003)
(“Investment Advisers are deemed not to be the beneficial owners of those shares for purposes of
§ 16(b), and because the defendant group's liability depends on counting those shares as
beneficially owned by the Investment Advisers so as to bring the group's ownership above 10%,
the defendants are not liable”). In other words, Egghead holds that Martin and RCM, as exempt
entities, are not beneficial owners for Section 16(b) purposes of the shares held on behalf of
Master Fund; nothing in the decision would support the notion that Master Fund somehow derives
the benefit of the exemptions enjoyed by its co-defendants.
Finding no language supporting their argument in the Second Circuit decision in Egghead,
defendants attempt to draw authority from an overly narrow construction of the lower court
decision. However, a fuller reading of the decision by Judge Marrero does not support the shareimmunization argument formulated by defendants. As Judge Marrero explained:
This regulatory framework suggests a two-tier inquiry for determining beneficial
ownership and the related ten percent holder status. The first step relates to the
ownership “person” for Section 13(d) purposes, and seeks to settle whether or not
4
the person or institution is one eligible to claim any of the ten exemptions
enumerated in Rule 16a–1(a)(1). The second step pertains to the securities in
question and the circumstances under which they were acquired and held. If these
tests satisfy the concerns that underlie the insider trading restrictions of the Act and
Rules, the shares at issue should not count toward the ten percent holder limitation
applicable to the person or institution involved. Under these circumstances, as the
SEC acknowledged, an eligible institution could aggregate, in the ordinary course
of business in customer and fiduciary accounts, shares of a particular issuer
exceeding the ten percent bound that, but for the Rule 16a–1(a)(1) exemption, could
subject the institution to liability under Section 16(b).
Rosen v. Brookhaven Capital Mgmt. Co., 113 F. Supp. 2d 615, 622–23 (S.D.N.Y. 2000). Thus, in
applying this two-tier inquiry here, Master Fund fails at the first step: it is not eligible to claim an
exemption under Rule 16a-1(a)(1).
Despite defendants’ suggestions to the contrary, Master Fund clearly is a beneficial owner
of the shares for the purposes of this analysis. Put another way, through their “inoculation”
theory, defendants seek impute to every member of a group the exemptions that could be claimed
by any members of that group. But the group exemption contained in Rule 16a-1(a)(1)(xi) only
applies, by its own terms, where “all members” of the group are exempt under subsections (i)
through (x). Brookhaven, 113 F. Supp. 2d at 628 (the “‘group’ exception [is] available under
subsection (x) when all the members of the group similarly qualify for exemption under Rule
16a–1(a)(1)(i) through (x)”). Here, by contrast, where it is undisputed that Master Fund did not
qualify for an exemption, and Master Fund held more than 10% of the outstanding shares, the
group analysis is simply inapplicable. There is no authority supporting the notion that an investor
can derivatively benefit from the exemption enjoyed by its registered investment advisor.3
Defendants further argue that Master Fund cannot be defined as a beneficial owner of the
3
And, indeed, if defendants’ analysis were to hold, this notion could effectively abrogate the
short swing profits rule. A single investor holding in excess of 10% of a publicly traded
company could take advantage of insider status while being immunized from short swing profit
liability simply by effecting trades through a registered investment advisor.
5
Flowers shares because, as the result of an “investment management agreement[,] Master Fund
does not have the power to vote, dispose, or do anything with these securities.” DE 61 at 19.4 It
appears that the Second Circuit has disposed of such delegation theories. In Huppe, the Second
Circuit was confronted with the argument that “the limited partners' delegation of exclusive power
to vote and dispose of the Funds' portfolio securities to their respective general partners . . .
precludes the Funds, who possessed merely an economic interest in the WPCS's shares, from
being ten percent holders under the SEC's rules.” Huppe v. WPCS Int'l Inc., 670 F.3d 214, 221
(2d Cir. 2012). The Circuit—relying chiefly on principles of agency law—rejected this argument.
Id. Importantly, the Circuit also noted that
under the Funds' “delegation” theory of Section 16(b) liability, only the general
partners' pecuniary share of any short-swing profits accruing to the partnership's
investment portfolio would be subject to disgorgement, because only general
partners hold investment and voting power over the securities held in the
partnership's portfolio—despite the fact that, when exercising that power, they are
acting on behalf of the partnership rather than themselves.
Id. at 222.
Though a different contractual structure, the very same can be said about RCM and
Master Fund—when executing the subject trades, RCM was acting on behalf of Master Fund.
Indeed, a review of the express terms of the Investment Management Agreement—a document
4
At oral argument, defendants’ counsel also contended that because “the shares are class B stock
[with] have essentially nominal voting power,” such facts bear on defendants’ intent and ability
to exercise control over Flowers. DE 61 at 5. However, defendants have not presented any
authority, and the Court has not located any, suggesting that the short swing profits rule is
somehow limited to Class A voting stock. Cf. Huppe v. WPCS Int'l Inc., 670 F.3d 214, 218 (2d
Cir. 2012) (“As we have observed, it is ‘quite apparent’ that Section 16(b) may be applied not
only to routine cash purchases and sales, but also to acquisitions and dispositions of equity
securities in transactions such as conversions, options, stock warrants, and reclassifications”).
Furthermore, the concerns underlying Rule 16 are not limited to voting rights, but also concern
information asymmetry.
6
brought into effect via four identical signatures by defendant Martin contemporaneously affixed
to the agreement5—makes it patent that Master Fund authorized RCM to act as its agent for all
purposes relevant hereto.6 This broad authority would appear to render the teachings of Huppe
5
Interestingly, defendants’ counsel places great weight on the 61-day termination provision
contained in the Agreement. While not outcome determinative, counsel’s argument raises the
curious issue of the violability of such a provision contained in an agreement among four entities
that entered said agreement by authorizing the same human to sign on behalf of all of them, and
could, presumably, revise, amend, or abrogate that agreement with a few strokes of a pen.
Notably absent from the termination provision of the agreement is a requirement that termination
requires “unanimous consent” of Master Fund’s directors or shareholders, which is an express
requisite for termination by the other entities that are parties to the agreement. DE 51-6 at 5.
6
According to the Agreement, RCM, as “investment manager” was accorded extremely broad
authority to act on behalf of Master Fund:
Such authority of the Investment Manager includes, without limitation and subject
to the terms of the Articles, as applicable, the authority to (i) invest substantially all
of the Feeder Funds' assets in the Master Fund, (ii) purchase, hold, sell, sell short,
cover and otherwise deal in securities and financial instruments of any sort,
including, without limitation, restricted and privately issued securities, on margin
or otherwise, with the sole authority to exercise all rights, powers, privileges and
other incidents of ownership or possession (including, but not limited to, voting
power) with respect to all such securities and financial instruments held by the
Master Fund; (iii) write, purchase, hold, sell and otherwise deal in put and call
options of any sort and in any combination thereof; (iv) purchase, hold, sell, sell
short and otherwise deal in commodities, commodity contracts, commodity futures,
financial futures (including Index futures) and options in respect thereof; (v)
purchase, hold, sell, sell short and otherwise deal in currencies, options thereon and
rights therein, including forward foreign currency exchange contracts; (vi)
purchase, hold, sell, sell short and otherwise deal in derivatives, swap contracts,
partnership interests, interests in other investment companies or any other financial
instruments that exist now or are hereafter created, (vii) conduct margin accounts
with brokers; open, maintain and close bank accounts and draw checks or other
orders for the payment of moneys; pledge securities for loans and effect borrowings
from brokers, banks and other financial institutions; and (viii) enter into, make and
perform any other contracts, agreements or other undertakings it may deem
advisable in conducting the business of the Funds, including but not limited to
contracts, agreements, or other undertakings with persons, firms or corporations
affiliated with the Investment Manager, as may be necessary or proper in
connection with the performance of the Investment Manager’s duties hereunder.
DE 51-6 at 1–2.
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and Tonga applicable to this case. Further, the notion that this arrangement could shield Master
Fund from liability “would be inconsistent with the text and purposes of Section 16(b) and, if
accepted, would seriously weaken the provision.” Huppe, 670 F.3d at 222; accord Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 51–52 (2d Cir. 2012), as amended (July 13,
2012) (“Under Huppe, therefore, both Cannell Capital and Tonga are “beneficial owners” for §
16(b) purposes, and therefore subject to disgorgement of the profits realized here by Tonga”).
Indeed, even assuming that such a delegation could shield Master Fund from short-swing
profit liability, “it is not necessarily the case that a party which has executed a contract purporting
to delegate such authority has effectively done so.” Greenfield v. Cadian Capital Mgmt., LP, 213
F. Supp. 3d 509, 515 (S.D.N.Y. 2016); see also Greenberg v. Hudson Bay Master Fund Ltd., No.
14 Civ. 5226(DLC), 2015 WL 2212215, *8 (S.D.N.Y. May 12, 2015) (citing 17 U.S.C.
§ 240.13d-3(a)) (“The regulations contemplate that a purchaser may not avoid Section 16(b)
liability simply by delegating voting and investment authority to a third party”). “An entity may
be the beneficial owner of securities even when it only indirectly shares or possesses voting and
investment power.” Id. (citing 17 U.S.C. § 240.13d-3(a)). Since nothing prevented defendants
from altering the agreement at will, the facts here cannot be reasonably construed as an effective
delegation. See SEC Div. of Corp. Fin., Compliance and Disclosure Interpretations, Exchange
Act Sections 13(D) and 13(G) and Reg. 13D-G Beneficial Ownership Reporting, Q. 105.04
(Sept. 14, 2009) (citing SEC Exchange Act Release No. 13291, Example 11 (Feb. 24, 1977)) (a
party need not report as beneficial owner where that entity “has delegated all authority to vote
and dispose of its stock to an investment advisor and which does not retain the right under the
contract to rescind the authority granted to the investment advisor within 60 days”).
Lastly, the delegation theory fails here because it is undisputed that RCM, Martin, and
8
Master Fund are not unaffiliated parties. The parties have submitted a chart summarizing the
interrelationships among defendants and several other related entities:
DE 53-7. Assuming the validity of the delegation theory, the intertwined relationship of these
parties proves fatal. One leading treatise—relied upon by defendants on this motion—notes that:
Generally, an entity is the beneficial owner of its portfolio securities where voting
and investment decisions are made by the persons who ... are charged with making
those decisions. The result may be different where the entity delegates voting and
investment authority to an unaffiliated third party and does not retain the ability
to revoke that authority within 60 days.
Peter J. Romeo & Alan L. Dye, SECTION 16 TREATISE & REPORTING GUIDE, § 2.03[5][f]
(emphasis added); Greenfield, 213 F. Supp. 3d at 515 (quoting same with approval). Another
treatise notes that “[a] person does not have beneficial ownership when he contracts the
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investment power and voting power to an independent third party.” Arnold S. Jacobs, The
Williams Act—Tender Offers and Stock Accumulations, § 2:12 (2013) (emphasis added). Because
it is beyond dispute that the defendants are not unaffiliated for these purposes, defendants’
delegation theory fails, and Master Fund was a beneficial owner of the Flowers shares. Hence,
plaintiff’s motion for summary judgment with respect to Master Fund is granted, and all other
pending motions denied.
DAMAGES AND PREJUDGMENT INTEREST
The parties have agreed upon the calculation by plaintiff’s expert in this matter, indicating
that the net short swing profits realized by Master Fund total $4,909,395. DE 53-1 at 3; DE 56 at
7. Thus, judgment will be entered in this sum.
Plaintiff also seeks an award of prejudgment interest on this amount. The Second Circuit
has observed:
Prejudgment interest is generally awarded as part of § 16(b) recoveries, but the
question of whether such interest should be given in a particular case is within the
discretion of the trial court. At the end of a well-considered series of opinions, the
district court suggested that the defendants, though liable, might well have acted in
good faith. It therefore declined to award prejudgment interest. We do not believe
that the district court abused its broad discretion in so deciding.
Morales v. Freund, 163 F.3d 763, 767 (2d Cir. 1999). Despite a period of fulsome discovery,
plaintiff has failed to offer any evidence of bad faith in this case. Given the complexities of this
matter, as well as the disclosure of beneficial ownership in Flowers’ Schedule13G filings, one can
easily posit that defendants were acting in good faith. Thus, the Court finds that plaintiff’s
request for an award of prejudgment interest is, on balance, unjustified on the facts before the
Court.
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CONCLUSION
For the reasons set forth above, plaintiff’s motion for summary judgment as to defendant
Master Fund is hereby GRANTED, and judgment shall be entered in the amount of $4,909,395.
All other motions are denied. The Clerk of the Court is directed to close this case.
Dated: Central Islip, New York
August 20, 2019
/s/ Gary R. Brown__________
Gary R. Brown
United States Magistrate Judge
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