                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2006

Morrison v. Madison Dearborn Cap
Precedential or Non-Precedential: Precedential

Docket No. 05-4901




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"Morrison v. Madison Dearborn Cap" (2006). 2006 Decisions. Paper 391.
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                                             PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                           No. 05-4901


                    LARRY MORRISON,
                                Appellant

                               v.

  MADISON DEARBORN CAPITAL PARTNERS III L.P.;
   MADISON DEARBORN SPECIAL EQUITY III L.P.;
     MADISON DEARBORN PARTNERS III L.P.;
      MADISON DEARBORN PARTNERS LLC;
      XM SATELLITE RADIO HOLDINGS INC.



        On Appeal from the United States District Court
                  for the District of Delaware
                    (D.C. No. 04-cv-00010)
            District Judge: Honorable Kent Jordan



          Submitted Under Third Circuit LAR 34.1(a)
                     September 14, 2006

   Before: SLOVITER, WEIS, and GARTH, Circuit Judges

                 (Filed : September 19, 2006)




Jeffrey S. Abraham, Esq.
Mitchell M. Twersky, Esq.
Abraham Fruchter & Twersky LLP
One Pennsylvania Plaza
Suite 1910
New York, New York 10119

      Attorneys for Appellant

Michael R. Robinson, Esq.
Lisa A. Schmidt, Esq.
Richards, Layton & Finger, P.A.
One Rodney Square
P.O. Box 551
Wilmington, DE 19801

James A. Langan, Esq.
Kathryn F. Taylor, Esq.
Kirkland & Ellis LLP
200 East Randolph Drive
Suite 6500
Chicago, IL 60601

      Attorneys for Madison Dearborn Capital Partners III,
      L.P., Madison Dearborn Special Equity III, L.P., Madison
      Dearborn Partners III, L.P., and Madison Dearborn
      Partners, LLC

John C. Keeney, Jr., Esq.
Hogan & Hartson LLP
555 13th Street, N.W.
Washington, DC 20004

Carolyn S. Hake, Esq.
Ashby & Geddes
222 Delaware Avenue
17th Floor
P.O. Box 1150
Wilmington, DE 19899

      Attorneys for XM Satellite Radio Holdings, Inc.



                                2
                  OPINION OF THE COURT

SLOVITER, Circuit Judge.

                               I.

        Larry Morrison, a shareholder of XM Satellite Radio
Holdings, Inc. (“XM”), brought a derivative suit under Section
16(b) of the Securities Exchange Act of 1934, 15 U.S.C. §
78p(b), to recover alleged short-swing profits realized by
corporate insiders Madison Dearborn Capital Partners III, L.P,
Madison Dearborn Special Equity III, L.P., Madison Dearborn
Partners III, L.P., and Madison Dearborn Partners, LLC
(collectively “Madison Dearborn”). The District Court
dismissed the complaint for failure to state a claim on which
relief can be granted. Fed. R. Civ. P. 12(b)(6). Morrison
appeals.

                               II.

       In August 2000, Madison Dearborn purchased 50,000
shares of “8.25% Series C Convertible Redeemable Preferred
Stock Due 2012” (hereinafter “Preferred Stock”) issued by XM
for $1000 per share. Combined with other purchases, Madison
Dearborn was the beneficial owner of 13.58% of the underlying
XM Common Stock.

        Holders of Preferred Stock are entitled to exchange their
shares for XM Common Stock. The Certificate of Designation
for the Preferred Stock set the conversion price at $26.50 per
share, but also contained “anti-dilution” provisions which
automatically decreased the conversion price when certain
events occurred, such as a stock split, payment of dividends, or
issuance of additional Common Stock. By 2003, the conversion
price had decreased to $19.68. On and subsequent to January
28, 2003, XM issued additional Common Stock, which further
reduced the conversion price to $8.96 per share as of June 30,
2003. Prior to the adjustment, Madison Dearborn was entitled to
convert its Preferred Stock into 2,540,650 shares of Common
Stock. Afterwards, it was entitled to 5,580,357 shares but never
exercised its right to convert those shares.


                                3
       In June 2003, Madison Dearborn sold 2,674,154 shares of
XM Common Stock that it had acquired independently of the
Preferred Stock. Morrison requested that XM bring suit against
Madison Dearborn to recover the alleged short-swing profits
realized by this sale. When XM declined to do so, Morrison
brought this derivative shareholder lawsuit.

                                  III.

        The District Court had jurisdiction over this action under
15 U.S.C. § 78aa. We have jurisdiction over this appeal from
the final judgment of the District Court under 28 U.S.C. § 1291.
We exercise plenary review over the order dismissing the
complaint, as well as the District Court’s interpretation of
securities law. In re Rockefeller Ctr. Properties, Inc. Sec. Litig.,
311 F.3d 198, 215 (3d Cir. 2002). When reviewing a motion to
dismiss, “we accept all factual allegations in the complaint as
true and view them in the light most favorable to the plaintiff[ ].”
In re IT Group, Inc., 448 F.3d 661, 667 (3d Cir. 2006).

                                  IV.

       Section 16(b) of the Securities Exchange Act of 1934
prohibits corporate insiders from using their privileged position
to profit from short-term transactions in the company’s stock. 15
U.S.C. § 78p(b).1 Short-swing trading is a strict-liability offense

       1
        Section 16(b) provides, in pertinent part:

       For the purpose of preventing the unfair use of information
       which may have been obtained by such beneficial owner,
       director, or officer by reason of his relationship to the
       issuer, any profit realized by him from any purchase and
       sale, or any sale and purchase, of any equity security of the
       issuer . . . within any period of less than six months . . . shall
       inure to and be recoverable by the issuer, irrespective of any
       intention on the part of such beneficial owner, director, or
       officer in entering into such transaction . . . . This
       subsection shall not be construed to cover . . . any
       transaction or transactions which the Commission by
       rules and regulations may exempt as not comprehended

                                   4
and does not require proof of actual abuse of insider information
or an intent to profit from such information. Foremost-
McKesson, Inc. v. Provident Sec. Co., 423 U.S. 232, 251 (1976).
The plaintiff need only prove that “‘there was (1) a purchase and
(2) a sale of securities (3) by an officer or director of the issuer
or by a shareholder who owns more than ten percent of any one
class of the issuer’s securities (4) within a six month period.’”
Levy v. Sterling Holding Co., 314 F.3d 106, 111 (3d Cir. 2002)
(quoting Gwozdinksy v. Zell/Chilmark Fund, L.P., 156 F.3d
305, 308 (2d Cir. 1998)). For the purposes of the motion to
dismiss, Madison Dearborn does not dispute that it is a corporate
insider or that it sold almost 2.7 million shares of XM Common
Stock in June 2003. The only issue is whether the automatic
adjustment to the conversion price of the Preferred Stock in
January 2003, was a “purchase” of securities.

       The Securities Exchange Act of 1934 authorizes the SEC
to enact regulations defining which transactions are included in
the ban on short-swing trading and which are “exempt as not
comprehended within the purpose of this subsection.” 15 U.S.C.
§ 78p(b). In 1991, the SEC adopted new regulations on the
applicability of Section 16(b) to transactions in derivative
securities. A derivative security is “any option, warrant,
convertible security, stock appreciation right, or similar right
with an exercise or conversion privilege at a price related to an
equity security, or similar securities with a value derived from
the value of an equity security . . . .” 17 C.F.R. § 240.16a-1(c)
(emphasis added).

       The parties agree that, because the Preferred Stock is
convertible into Common Stock, the Preferred Stock is a
derivative security. More specifically, the Preferred Stock is a
“call equivalent position,” because it “increases in value as the
value of the underlying equity increases . . . .” 17 C.F.R. §
240.16a-1(b). The regulations state that “[t]he establishment of
or an increase in a call equivalent position . . . shall be deemed a
purchase of the underlying security for purposes of section 16(b)


       within the purpose of this subsection.

15 U.S.C. § 78p(b) (2006) (emphasis added).

                                 5
. . . .” 17 C.F.R. § 240.16b-6(a). Morrison argues that the
adjustment in the conversion price increased Madison
Dearborn’s call equivalent position from 2,540,650 shares to
5,580,357 shares of XM Common Stock. Thus, he argues, under
the plain meaning of the regulations, the adjustment constituted a
“purchase.”

       Morrison’s argument is contrary to the SEC’s
interpretation of the regulations. An agency’s reasonable
interpretation of its own regulations “attracts substantial judicial
deference.” United States v. Cleveland Indians Baseball Co.,
532 U.S. 200, 219 (2001) (citation omitted). “Our task is not to
decide which among several competing interpretations best
serves the regulatory purpose. Rather, the agency's
interpretation must be given controlling weight unless it is
plainly erroneous or inconsistent with the regulation.” Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (internal
quotation marks omitted). Deference is especially warranted
when the regulations concern “a complex and highly technical
regulatory program[.]” Id. (internal quotation marks omitted).
Particular weight is given to agency interpretations made at the
time the regulations are promulgated. Gardebring v. Jenkins,
485 U.S. 415, 430 (1988).

        The SEC anticipated, and rejected, Morrison’s argument.
In the release announcing the new regulations, the SEC states
that the regulations only apply to derivatives with a “fixed
exercise price.” Ownership Reports and Trading By Officers,
Directors and Principal Security Holders, 56 Fed. Reg. 7242,
7252 (Feb. 21, 1991) (hereinafter “Release”). The Release
clarifies what constitutes a “fixed” price, saying,

       A convertible security with a fixed conversion privilege is
       deemed to have a fixed exercise price. A derivative
       security having a series of preset prices, or having a price
       that is adjusted to reflect pre-specified events such as a
       stock split, is considered fixed for purposes of the Rule.
       The adjustments for pre-specified events do not constitute
       acquisitions of additional equity securities.

Release, at 7252 n.134 (emphasis added). Therefore, under the


                                 6
SEC’s interpretation, the adjustment to the conversion price of
the Preferred Stock is not a “purchase.”

       The SEC’s interpretation is consistent with the statutory
purpose. The ban on short-swing trading was enacted “[f]or the
purpose of preventing the unfair use of information which may
have been obtained by [corporate insiders.]” 15 U.S.C. § 78p(b).
The SEC has attempted to identify those transactions which have
a “potential for abuse.” Release, at 7249. The potential for
abuse is minimal when the adjustments are automatic, and the
triggering events were specified at the time when the stock was
purchased. The shareholder cannot control when, or even if, the
adjustment occurs. Cf. Lerner v. Millenco, L.P., 23 F. Supp. 2d
337, 343 (S.D.N.Y. 1998) (holding that a shareholder had
purchased additional securities by negotiating with the company
to reduce the conversion price of convertible debentures). While
the possibility of insider trading is not entirely eliminated, it is
not so great as to impose strict liability as provided in Section
16(b).

                                V.

        We defer to the SEC’s reasonable position that an
automatic adjustment to the conversion price of a derivative
security is not a “purchase” for the purposes of Section 16(b).
The District Court fully considered Morrison’s arguments before
rejecting his arguments that the increase in the conversion ratio
subjected Madison Dearborn to liability under Section 16(b).
Therefore, we will affirm the decision of the District Court to
dismiss the complaint.




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