holding that a shareholder who failed to tender shares still had standing to sue directly under section 14(e) because the plaintiff alleged that other shareholders were misled into tendering shares that resulted in a merger
How later courts described this case
- holding that a shareholder who failed to tender shares still had standing to sue directly under section 14(e) because the plaintiff alleged that other shareholders were misled into tendering shares that resulted in a merger
- holding shareholder alleging “fraudulent activity in connection with a 26 tender offer” based on defendants’ “omitting and misstating certain material information” 27 has standing to “bring suit for violation of section 14(e)”
- giving an administrative proceeding collateral estoppel effect because “[t]he fairness hearing was conducted similarly to a court proceeding. It was an adversary proceeding in which opposing parties were present and represented by counsel and were allowed to call, examine, cross-examine, and subpoena witnesses- [Testimony was to be submitted under oath or affirmation and a verbatim transcript was required.”
- issue of “fairness” was properly before California Corporations Commissioner because he had jurisdiction to decide that issue under California law
Written by the judges who cited it.
The opinion
FLETCHER, Circuit Judge,
concurring in the result:
I concur in part I of the majority opinion holding that Plaine has standing to assert a section 14(e) claim, and in part IV of the opinion rejecting the defendants’ alternative grounds for dismissal. I disagree, however, with the majority’s collateral estoppel analysis, and concur separately to state my reasons.
Collateral estoppel may bar relitigation of an issue decided in a previous proceeding. “ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 , 90 S.Ct. 1189, 1194 , 25 L.Ed.2d 469 (1970). “Similarity between issues does not suffice; collateral estoppel is applied only when the issues are identical.” Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1357 (9th Cir.1985) (en banc) (emphasis added). The key question facing us is whether the issue adjudicated before the California Corporations Commissioner, the fairness of the merger price, is identical to the issue in the case at bar, whether Natomas and Magma violated section 14(e) by omitting and misstating certain material information in the Offer to Purchase.
In Part III of its opinion, the majority addresses this question and correctly concludes that “shareholders can be injured in *724 ways other than by receiving an ‘unfair’ price for their shares.” Even though the California Corporations Commissioner determined that the merger price was fair, Plaine should be afforded an opportunity to show that had the defendants complied with section 14(e), she would have obtained a higher price for her shares. The majority recognizes that the damages to which a successful section 14(e) plaintiff is entitled are not restricted to a determination of a fair price.
I thus conclude that the issue of whether a merger price is fair within the meaning of the California Corporations Code is not identical to the issue of whether the plaintiff has suffered compensable injury under section 14(e). Because identity of issues is the first prerequisite for application of collateral estoppel, I believe we need proceed no further. I would hold that the district court erred in deciding that the California Corporations Commissioner’s determination of fairness collaterally estopped Plaine from proceeding with her federal securities law action, and would remand to allow Plaine to proceed with her case.
I therefore concur in the result.