Explain whether the plaintiff should succeed-Should the SEC succeed? Explain. Original Answers Only


1. Texas Gulf Sulphur Company (TGS) was a corporation engaged in exploring for and mining certain minerals. A particular tract of Canadian land looked very promising as a source of desired minerals, and TGS drilled a test hole on November 8. Because the core sample of the hole contained minerals of amazing quality, TGS began to acquire surrounding tracts of land. Stevens, the president of TGS, instructed all on-site personnel to keep the find a secret. Because subsequent test drillings were per- formed, the amount of activity surrounding the drilling gave rise to rumors regarding the size and quality of the find. To counteract these rumors, Stevens authorized a press release denying the validity of the rumors and describing them as excessively optimistic. The release was issued on April 12 of the following year, though drilling continued through April 15. In the meantime, several officers, directors, and employees had purchased or accepted options to purchase additional TGS stock on the basis of the information concerning the drilling. They also recommended similar purchases to outsiders without divulging the inside information to the public. At 10:00 A.M. on April 16, an accurate report on the find was finally released to the American financial press. The Securities and Exchange Commission brought an action against TGS and several of its officers, directors, and employees to enjoin conduct alleged to violate Section 10(b) of the Securities Act of 1934 and to compel rescission by the individual defendants of securities transactions assertedly conducted in violation of Rule 10b-5. Have any of the defendants violated Section 10(b)? Explain.

2. W. J. Howey Company and Howey-in-the-Hills Service, Inc., were Florida corporations under direct common control and management. Howey Company owned large tracts of citrus acreage in Florida. The service company cultivated, harvested, and marketed the crops. For several years, Howey Company offered one-half of its planted acreage to the public to help it “finance additional development.” Each prospective customer was offered both a land sales contract and a service contract with Howey-in-the-Hills after being told that it was not feasible to invest in the grove without a service arrangement. Upon payment of the purchase price, the land was conveyed by warranty deed. The service company was given full discretion over cultivating and marketing the crop. The purchaser had no right of entry to market the crop. The service company also was account- able only for an allocation of the net profits after the companies pooled the produce. The purchasers were predominantly nonresident businesspersons attracted by the expectation of substantial profits. Contending that this arrangement was an investment contract within the coverage of the Securities Act of 1933, the Securities and Exchange Commission (SEC) brought an action against the two companies to restrain them from using the mails and instrumentalities of interstate commerce in the offer and sale of unregistered and nonexempt securities. Should the SEC succeed? Explain.

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3. Between December 4 and December 17, John Malone, a director and large shareholder of Discovery Communications, Inc. (“Discovery”), engaged in sales of Discovery’s “Series C” stock totaling 953,506 shares and purchases of Discovery’s “Series A” stock totaling 632,700 shares. Discovery’s Series A stock and Series C stock are different equity securities; are separately registered; and are traded separately on the NASDAQ stock exchange under the ticker symbols DISCA and DISCK, respectively. The principal difference between the two securities is that Series A stock comes with voting rights whereas Series C stock does not confer any voting rights. Series A stock and Series C stock are not convertible into each other. A shareholder brought a shareholder suit seeking disgorgement of the profits that Malone realized from these transactions. Explain whether the plaintiff should succeed

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