Brief Fact Summary. Controlling shareholders in a corporation, Wolfson (Defendant) and his associates, used brokers to execute the sale of unregistered shares.
Synopsis of Rule of Law. When controlling shareholders use brokers to implement the sale of unregistered stocks they are in violation of the Securities Act.
In the somewhat analogous case of a contract of hiring and service, it is well settled that a court of equity cannot compel the performance of the service, although it may in some cases enforce a negative stipulation not to serve any third person within the time agreed.View Full Point of Law
Issue. Is the Securities Act violated when controlling shareholders use brokers to implement sales of unregistered shares?
Held. (Woodbury, J.) Yes. The Securities Act is violated when controlling shareholders use broker’s to execute the sale of unregistered shares. § 5(a) of the Act makes it illegal to implement the sale of unregistered securities in transactions involving issuers, dealers or underwriters. Anyone who buys from an issuer with understanding to distribute is defined as an “underwriter”, while § 2(11) defines “issuer” to include individuals controlling the issuer. In this case, the brokers who purchased from Wolfson were underwriters because Wolfson controlled Continental and the transaction falls within the domain of the Act. Affirmed.
Discussion. The Securities Act fails to offer a broker’s immunity to liability, and so the opinion here doesn’t mention it either, although as underwriters they could be held criminally liable. The facts stated in this opinion do not clearly state whether the brokers took advantage of this narrow exception.