Kay Hollinger Richard Llewelyn Jones Edward E. Nissen Judy D'Arcy K-Judy, Ltd. v. Titan Capital Corp. Emil Wilkowski Painter Financial Group, Ltd.

CYNTHIA HOLCOMB HALL, Circuit Judge

with whom RYMER, Circuit Judge, joins dissenting:

I concur in all but section IV of the majority opinion. I would hold that section 20(a) of the Act, which already imposes vicarious liability upon all employers for the fraudulent acts of their employees, precludes the grafting of the common law doctrine of respondeat superior onto a federal securities law action. The inclusion in the securities laws of statutory provisions which expressly impose controlling person liability indicates that Congress intended to exclude other forms of vicarious liability. If we impose secondary liability under re-spondeat superior upon Titan for Wilkow-ski’s rule 10b-5 fraud, we effectively nullify the exculpatory provision of section 20(a) as well as the scienter element of a 10(b) claim. The majority bases its holding on an analysis of the legislative history behind section 20(a) and on policy arguments regarding the remedial nature of the Act. Majority opinion at 1577-1578. Both of these arguments are unpersuasive for a number of reasons.

A more comprehensive examination of the legislative history behind section 20(a) reveals the majority’s conclusion to be somewhat facile. While preventing “dummy” corporations from escaping liability under the Act may have been one reason for the enactment of section 20(a) (see majority opinion at 1577), 1 its primary pur *1580 pose was to limit securities fraud liability to those whose conduct is in some sense culpable. Section 20(a) was modeled upon section 15 of the Securities and Exchange Act of 1933. 2 Hearings on S.Res. 84 (72d Cong.), S.Res. 56 and 97 (73d Cong.) Before the Senate Comm, on Banking and Currency, 73d Cong., 1st Sess. 6571 (1934). Section 15 originally made controlling persons liable under Securities Act section 11 (imposing liability for untrue or misleading statements in a registration statement on issuer, underwriter and others involved with the registration statement) and section 12 (imposing liability on sellers of unregistered securities or of securities sold by means of untrue or misleading statements) jointly and severally with the controlled person to anyone to whom the controlled person was liable. 1933 Act, ch. 38, § 15, 48 Stat. 84 . Congress specifically rejected the notion of insurer liability under this 1933 Act. As we noted in Christoffel v. E.F. Hutton & Co., 588 F.2d 665, 668 (9th Cir.1978):

Legislative history reveals that the Senate and the House had advocated different versions of the standard that should govern controlling persons. The House proposed that the standard should be a “fiduciary standard,” which would require a duty of due care. (H.R.Rep. No. 85, 73d Cong., 1st Sess. 27 (1933); H.R. Rep. No. 152, 73d Cong., 1st Sess. 27 (1933).) On the other hand, the Senate proposed an “insurer’s liability” (S.Rep. No. 47, 73d Cong., 1st Sess. 5 (1933), the Fletcher Report). Congress enacted the House version, rejecting the insurer concept.

Id. at 668 . 3

Furthermore, the comments to section 20(a) made by Representative Rayburn, the then-Chairman of the House Committee on Interstate and Foreign Commerce, show that employers were meant to fall within that section, and thus be given the protection of the good faith defense. Rep. Rayburn’s statement, contained in both the House Report and made on the floor of the House, includes “agency” among other forms of legal relationships under the rubric “control.” 4 See generally D. Fischel, *1581 Secondary Liability Under Section 10(b) of the Securities Act of 1934, 69 Cal.L.Rev. 80 (1981) for an in-depth review of the legislative history behind the Act.

Finally, the majority’s reading of the legislative history is illogical. On the one hand, the majority contends, Congress was so concerned with organizational “dummies” set up for the sole purpose of avoiding the antifraud provisions of the Act that it enacted section 20(a) and (b) just to catch them. At the same time, however, the majority suggests that Congress deliberately gave these “dummy” organizations a good faith defense which it denied to ordinary controlling persons such as lawful employers.

To hold an individual liable for securities fraud committed by his employee without proof of fault, in addition to being contrary to the position of Congress established in its legislative history, would violate the express language of the Act. Section 20(a) extends the good faith defense to employers, and nowhere is there an express statutory provision for expanding employer liability under respondeat superior. Section 10(b) prohibits manipulative or deceptive practices, but does not provide that it shall also be unlawful to employ a person who engages in such practices. When engaging in statutory interpretation, recent Supreme Court eases mandate that the courts consider only the actual language of the statute to divine Congressional intent, and not genera] principles of tort law or public policy. An analogy to those cases concerning when a private right of action is implied in federal securities cases is instructive. In Touche Ross & Co. v. Redington, 442 U.S. 560, 568 , 99 S.Ct. 2479, 2485 , 61 L.Ed.2d 82 (1979), the Court held that the lower court’s reliance on tort principles to sustain a private cause of action under section 17(a) of the Securities Exchange Act of 1934 was “entirely misplaced.” The Court stated that “[t]he invocation of the ‘remedial purposes’ of the 1934 Act is ... unavailing. Only last Term we emphasized that generalized references to the ‘remedial purposes’ of the 1934 Act will not justify reading a provision ‘more broadly than its language and the statutory scheme reasonably permit.’ ” Id. at 578 , 99 S.Ct. at 2490 . See also Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16 , 100 S.Ct. 242, 245 , 62 L.Ed.2d 146 (1979) (Court refused to imply a private damage remedy under section 201 of the Investment Advisers Act of 1940, holding that a court should not consider “the desirability of implying private rights of action in order to provide remedies thought to effectuate the purposes of a given statute.”). 5 Thus the majority’s broad interpretation of the statute in order to protect the public more comprehensively (majority opinion at 1578) should be rejected.

Furthermore, the requirement of culpability underlying section 20(a) and the Act in general would be vitiated by the use of respondeat superior. 6 This policy is exemplified by Congress’ refusal to place insurer’s liability on brokerage firms when it enacted section 15 of the 1933 Act and section 20(a) of the 1934 Act. In addition, the Supreme Court, while never expressly addressing the precise question presented here, nevertheless has held that a Rule 10b-5 violation requires scienter, and assumed that all controlling persons are entitled to the protection of the good faith defense. In Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 , 96 S.Ct. 1375, 1380 , 47 L.Ed.2d 668 (1976), the Court held that each liability provision of the 1934 Act “contains a state-of-mind condition requiring something more than negligence.” The Court further noted that “§ 20, which imposes liability upon ‘controlling person[s]’ for violations of the Act by those they control, exculpates a defendant who ‘acted in good faith and did not ... induce the act ... constituting the violation_’” Id. at *1582 209 n. 28, 96 S.Ct. at 1388 n. 28. (emphasis added). 7

Respondeat superior, on the other hand, is a strict liability doctrine. See Restatement (Second) of Agency § 219 (1958) (stating that employees are servants, and a master is responsible for the torts of his servant when the torts are done while the servant is acting within the scope of his employment). The only inquiry under the doctrine of respondeat superior is whether the individual’s fraudulent act was committed within the scope of his employment; 8 any discussion of good faith, negligence, or a duty to supervise is irrelevant. As one of the major treatises on the subject recognizes:

Vicarious liability ... is imposed ... in cases where the master has taken all the steps that reasonable foresight would suggest, including those which involve the exercise of control. Indeed, the court is not even interested in hearing whether the master exercised his right of control well and prudently.

F. Harper & F. James, Jr., The Law of Torts 1367 (1956).

In common actions like the present one based upon misrepresentation by employees in connection with the purchase and sale of securities, a broker-dealer will virtually never be able to prove that such a representation was made outside an employee’s scope of employment. See, e.g., Holloway v. Howerdd, 536 F.2d 690 (6th Cir.1976) (trial court concluded firm had met good faith defense but appellate court found firm vicariously liable for fraud of employee anyway as the brokerage firm “must be clearly disassociated from [the unlawful transactions] as otherwise it will incur liability on the basis of respondeat superior ... ”). Holding broker-dealers secondarily liable under the common law doctrine of respondeat superior would render superfluous section 20(a), for they would be responsible despite their having fulfilled a stringent good faith test based on their having maintained and enforced reasonable and proper supervision and internal controls. See generally W. Fitzpatrick & R. Carman, Respondeat Superi- or and the Federal Securities Laws: A Round Peg In a Square Hole, 12 Hofstra L.Rev. 1 (1983).

Section 28(a) of the 1934 Act 9 does not say otherwise. This section merely expresses Congress’ intent not to preempt state or common law claims based on the same facts underlying the federal claims; it does not authorize courts to engraft inconsistent state or common law rights and remedies into this new federal securities fraud claim created, defined, and limited by the Act. As Representative Rayburn explained, “this subsection reserves rights and remedies existing outside of those provided in the act.” 78 Cong.Rec. 7709 (1934). See also Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 , 738 n. 9, 95 S.Ct. 1917 , 1927 n. 9, 44 L.Ed.2d 539 (1975) (where the Court did not allow a plaintiff who had been offered, but had not purchased, a security to maintain a cause of action under Rule 10b-5, but stated that under The Securities Exchange Act of 1934, § 28(a), a non-purchaser may have a cause of action under state law). Thus this section was not intended to engraft common law concepts into the provisions of the *1583 Act itself. Rather, the common law doctrine of respondeat superior can still apply where the predicate offense giving rise to vicarious liability is created by state law, such as in a tort-based fraud action.

While I realize that several other circuits have reached the opposite conclusion on this issue, there is not as strong a consensus as the majority suggests. 10 Majority opinion n. 26. As the majority admits, there is some confusion over what the law is in the Fourth Circuit. See Carpenter v. Harris, Upham & Co., 594 F.2d 388, 394 (4th Cir.) (court found that Congress intended civil liability of sellers of securities to be premised on scienter, thus the employer in this case, though a controlling person, is not liable for the securities violation of its employee because it adequately supervised him), cert. denied, 444 U.S. 868 , 100 S.Ct. 143 , 62 L.Ed.2d 93 (1979); Haynes v. Anderson & Strudwick, Inc., 508 F.Supp. 1303 (E.D.Va.1981) (court held that the common law doctrine of responde-at superior and vicarious liability under section 20(a) cannot sensibly or fairly operate concurrently, and since Congress has specifically granted the broker-dealer the good faith defense contained in section 20(a) it is the exclusive standard of liability).

Holloway v. Howerdd, 536 F.2d 690 (6th Cir.1976), upon which the majority rely for the proposition that the Sixth Circuit holds that section 20(a) supplements respondeat superior, can be as easily read to support the dissenting position. Although not completely clear from the opinion, it appears that the court applied respondeat superior to a common law cause of action, not to a federal securities violation. “The use of the doctrine of respondeat superior to impose liability on TSI must be predicated on a finding that Tucker engaged in some illegal activity. The District Judge imposed liability on TSI on the basis that its employee, Tucker, was guilty of fraud and misrepresentation in his sale of Modular shares.” Id. at 695 . This interpretation is bolstered by the court’s refusal to award attorney’s fees to the plaintiff. “Liability has been imposed on TSI under the common law doctrine of respondeat superior for the misdeeds of its agent; however, TSI has been absolved of any liability arising under the Securities Act of 1933 itself. Therefore the statutory authorization for an award of attorney’s fees [15 U.S.C. § 77k(e) ] cannot be applied because the liability of TSI does not originate in the Act but in the common law.” Id. at 697 (emphasis added). See also SEC v. Washington County Util. Dist., 676 F.2d 218 , 224 n. 11 (6th Cir.1982), (“In essence, the Commission, in Coffey, attempted to hold King liable on the basis of respondeat superior. We refused to impose liability on that theory. Coffey, 493 F.2d at 1315. Accord, Rochez Brothers, Inc. v. Rhoades, 527 F.2d 880, 886 (3d Cir.1975); Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.1975.)”).

Though it is true that the First, Second, Third, Eighth and Tenth Circuits hold to the contrary, we are not, of course, bound by those decisions. Following the letter of the statute and allowing a broker-dealer his good faith defense in no way diminishes his obligation under the Act. He is still accountable, both administratively to the Commission and civilly to the public, for his misdeeds and failure to supervise his employees. The public is well protected by state, federal, and common law without subjecting employers to insurer liability for acts they did not commit and could not have reasonably anticipated or guarded against. Therefore, I respectfully DISSENT.

. It also appears that the remarks regarding "organizational dummies” were primarily addressed to section 20(b), not section 20(a). The former section provides:

It shall be unlawful for any person, directly or indirectly, to do any act or thing which it would be unlawful for such person to do under the provisions of this title or any rule or regulation thereunder through or by means of any other person.

Securities Exchange Act of 1934 § 20(b), 15 U.S.C. § 78t(b) (1976).

When referring to the two sections, the report of the Committee on Interstate Commerce stated that section 20(a) makes "a person who controls a person ... liable to the same extent as the person controlled unless the controlling person acted in good faith and did not induce the *1580 act in question.” 78 Cong.Rec. 7709 (1934). In discussing section 20(b), the Committee noted that that section “makes it unlawful for any person to do, through any other person, anything that he is forbidden to do himself.” Id.

. Securities Exchange Act of 1934 § 20(a), 15 U.S.C. § 78t(a) (1976) provides:

Every person who, directly or indirectly, controls any person liable under any provision of this title or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.

Securities and Exchange Act of 1933 § 15, as amended, 15 U.S.C. § 77o (1976) provides:

Every person who, by or through stock ownership, agency, or otherwise ... controls any person liable under section 77k or 771 of this title, shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person had no knowledge or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist.

. Congress made the good-faith defense even more clear one year later. The Act which enacted the 1934 Act amended Section 15 of the 1933 Act by adding the clause at the end reading “unless the controlling person had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist.” H.R.Conf.Rep. No. 1838, 73d Cong., 2d Sess. 42 (1934). See supra, n. 2. As Senator Fletcher explained, "the purpose of this amendment is to restrict the scope of the section so as more accurately to carry out its real purpose. The mere existence of control is not made a basis for liability unless that control is effectively exercised to bring about the action upon which liability is based.” 78 Cong.Rec. 8185 (1934).

.In this section and in section 11, when reference is made to "control”, the term is intended to include actual control as well as what has been called legally enforceable con-trol_ It was thought undesirable to attempt to define the term. It would be difficult if not impossible to enumerate or anticipate the many ways in which actual control may be exerted. A few examples of the methods used are stock ownership, lease, contract, and agency.

78 Cong.Rec. 7709 (1934) (daily ed. April 30, 1934 statement of Representative Rayburn); accord H.R.Rep. No. 1383, 73d Cong., 2d Sess. 26 (1934).

. The Court, while never facing the issue directly, has stated that the existence of an implied private right of action under section 10(b) is "well established.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 196 , 96 S.Ct. 1375, 1382 , 47 L.Ed.2d 668 (1976).

. This requirement is not abridged by the use of aiding-and-abetting or conspiracy rules, because both of those theories, at least as they are employed under the federal securities laws, still require culpability on the part of the "secondary" defendant.

. Most courts have since held that failure to supervise constitutes recklessness and thus meets the scienter requirement, because of the high obligation owed by brokerage firms based upon their fiduciary role. See, e.g., G.A. Thompson & Co. v. Partridge, 636 F.2d 945, 959 (5th Cir.1981) ("Liability based upon failure to supervise suggests recklessness_”); Carpenter v. Harris, Upham & Co., 594 F.2d 388, 394 (4th Cir.), cert. denied, 444 U.S. 868 , 100 S.Ct. 143 , 62 L.Ed.2d 93 (1979); Zweig v. Hearst Co., 521 F.2d 1129, 1135 (9th Cir.1975).

. It is sufficient if an agent was acting in what reasonably appeared to the third party to be in the scope of his employment, under the doctrine of apparent authority. See Restatement (Second) of Agency § 265 (1958). Apparent authority liability is imposed even when the agent was acting solely for his own purposes, unless this is known to the person with whom the agent is dealing. Id. § 262.

. Section 28(a) of the 1934 Act, 15 U.S.C. § 78bb (1976), provides in pertinent part:

The 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.

. The Third Circuit has held that generally respondeat superior may not serve as a basis for secondary liability under Rule 10b-5, but carves out an exception for broker-dealers and accounting firms. Sharp v. Coopers & Lybrand, 649 F.2d 175, 181 (3d Cir.1981), cert. denied, 455 U.S. 938 , 102 S.Ct. 1427 , 71 L.Ed.2d 648 (1982).

The Seventh, Eleventh, and District of Columbia Circuits have apparently not spoken on this issue.