short-form merger actionable under Rule 10b-5
How later courts described this case
- short-form merger actionable under Rule 10b-5
Written by the judges who cited it.
The opinion
J. JOSEPH SMITH, Circuit Judge
(concurring):
I concur. I find it difficult to reconcile the 10(b) basis of the holding with the opinion in Popkin v. Bishop, 464 F.2d 714 (2d Cir. 1972). However, this case illustrates the opportunities for fraudulent treatment of securities holders in corporations “going private” for no legitimate corporate purpose even though with full, even brazen disclosure. It casts doubt on the desirability of a “full disclosure” bar in all situations. In any case, grant of the injunction here is sustainable on the ground of breach of the fiduciary duty under New York law of the majority shareholders in their admitted self-dealing. Compare, Bryan v. Brock and Blevins Co., 490 F.2d 563 (5th Cir.), cert. denied, 419 U.S. 844 , 95 S.Ct. 77 , 42 L.Ed.2d 72 (1974).