United States v. John J. Cassese , 428 F.3d 92 ( 2005 )

B.D. PARKER, JR., Circuit Judge.

The Government appeals a judgment of acquittal in the United States District Court for the Southern District of New York (Sweet, J.) following the conviction of John J. Cassese for violating Section 14(e) of the Securities Exchange Act of 1934 (“1934 Exchange Act”) and Rule 14e-3 by committing fraud in connection with a tender offer. See 15 U.S.C. §§ 78n(e), 78ff; 17 C.F.R. § 240.14e-3(a). The Government charged that Cassese, the CEO of Computer Horizons Corporation, illegally purchased 15,000 shares of Data Processing Resources Corporation (“DPRC”) stock after he learned from Compuware that it planned to acquire DPRC.

On appeal, the Government contends that the District Court erred in requiring proof of Cassese’s belief that the Compu-ware/DPRC transaction was, or was likely to be, structured as a tender offer, and the Government only needed to show that Cassese believed his transactions were unlawful to prove that he acted willfully. The Government also contends that it adduced sufficient evidence of Cassese’s willfulness, and, that the District Court abused its discretion in conditionally granting Cassese a new trial. We do not reach the first or third of these contentions, because we conclude that the Government— giving it all the presumptions to which it is entitled- — failed to prove beyond- a reasonable doubt that Cassese willfully violated Rule 14e-3 even under the more relaxed definition of willfulness it proposes. Consequently, we affirm the judgment of acquittal.

Background

I

Cassese was the Chairman and President of Computer Horizons Corporation, a New Jersey-based information technology services company. In April 1999, Computer Horizons entered into merger discussions with Compuware, a publicly traded company in the same line of business, and a meeting between executives of the two companies resulted in a proposal by Com-puware to purchase Computer Horizons. The proposal consisted of a letter of intent with a proposed confidentiality agreement, both of which were forwarded to Computer Horizons on May 4, 1999 by Compuware’s investment banker Barry Goldsmith. See United States v. Cassese, 290 F.Supp.2d 443, 446 (S.D.N.Y. Nov.13, 2003) (Cassese II).

In the Letter of Intent, Compuware offered Computer Horizons $22.50 per share for all outstanding shares and stated that the transaction would take place through either a tender offer or a cash merger. Cassese personally stood to gain $33 million in cash if the deal had gone through. The Board of Directors of Computer Horizons rejected Compuware’s offer as too low, but Cassese continued to discuss the merger with Goldsmith. Later in May 1999, Goldsmith called Cassese and told him that it was unlikely that Compuware would acquire Computer Horizons at that time.

At about the same time that Compuware had initiated merger discussions with Computer Horizons, it also contacted DPRC about the possibility of a merger. DPRC was a publicly traded company based on the West Coast that was similar in size and lines of business to Computer Horizons. DPRC and Compuware met in April and May of 1999, and by the beginning of June, the DPRC Board of Directors had approved a merger of the two companies. See id.

On June 17, 1999, Goldsmith asked the Chief Executive Officer of Compuware, Peter Karmanos, Jr., to call Cassese to inform him that Compuware was going to buy another company and that Compuware might be interested in acquiring Computer Horizons at some point in the future. At the time he made the phone call, Karma-nos had not been involved in his company’s negotiations with Computer Horizons and was not aware that an offer had been made to Computer Horizons. On June 21, 1999, Karmanos spoke with Cassese by phone and told him that Compuware would not be doing a deal with Computer Horizons at that time, but might be interested in purchasing it in the future. During the conversation, Karmanos also told Cassese that Compuware was going to announce a deal with DPRC but did not divulge any details about the terms or structure of the proposed transaction.

The next day, June 22, 1999, Cassese, who had previously owned shares of DPRC, purchased 15,000 shares of DPRC stock in his own name in two of his brokerage accounts. He called Joseph Moschel-la, a friend of his son’s and a broker at Morgan Stanley, but could not reach him. He then called Michael Pizzutello, his broker at Merrill Lynch, and placed an order for 10,000 shares. A short time later, when Moschella called him back, Cassese placed an order for an additional 5,000 shares of DPRC and, in order to cover the cost of the purchase, sold another stock in his portfolio.

On June 24, 1999, Compuware announced that it would make a tender offer for all outstanding shares of DPRC. Later that day, Moschella informed Cassese of the merger announcement and the current trading price of the stock. Moschella testified at trial that Cassese sounded surprised when Moschella told him about the tender offer announcement. Cassese asked Moschella to sell the DPRC shares in his Morgan Stanley account, and Cass-ese made a profit of approximately $49,000 on the sale. Approximately twenty minutes later, Cassese called Donald Pizzutel-lo (Michael Pizzutello’s father and partner) and asked him to sell the DPRC shares in his Merrill Lynch account. Cassese made a profit of almost $100,000 on this second sale, contributing to a combined profit of about $149,000. Sometime after Donald Pizzutello sold Cassese’s DPRC shares in the Merrill Lynch account, Cassese asked him if he could cancel the trades, and Pizzutello told him that the trades could not be undone. When interviewed by FBI agents several years later, Pizzutello did not remember Cassese asking him if he could cancel the trades. However, when Pizzutello told Cassese about the interview, Cassese reminded him of the cancellation call and urged him to call the FBI back and set the record straight, which Pizzutello did.

In August 1999, approximately two months after Cassese’s DPRC transactions, Cassese and Goldsmith discussed Cassese’s purchase of DPRC stock, and Goldsmith testified at trial that he recalled Cassese admitting to him during that conversation, in substance, that “he had made a stupid mistake.” (Tr. 206). Goldsmith explained in his testimony that he understood Cassese to mean that he had done something that “he should not have done,” but Goldsmith did not recall Cassese saying that he felt he had done anything wrong. (Tr. 208, 251-52). Goldsmith also testified that he had the impression Cass-ese was “upset or angry” but that it was not clear to him why. (Tr. 208-09, 252-53).

II

On February 25, 2002, the SEC filed a complaint against Cassese for insider trading in DPRC securities. Cassese consented to the entry of judgment against him, and agreed to pay disgorgement in the amount of $150,937.50, prejudgment interest of $19,512.84, and a civil penalty of $150,937.50. Cassese II, 290 F.Supp.2d at 444.

A year later, in March 2003, Cassese was indicted on two counts of insider trading for violating Sections 10(b) and 14(e) of the 1934 Exchange Act. See 15 U.S.C. §§ 78j(b), 78n(e), 78ff; 17 C.F.R. §§ 240.10b-5, 240.14e-3. The District Court concluded that Cassese owed no fiduciary duty to Karmanos or Compuware and dismissed the count predicated on Section 10(b). United States v. Cassese, 273 F.Supp.2d 481, 485-88 (S.D.N.Y. July 23, 2003) (Cassese /). The count charging a violation of Section 14(e) and Rule 14e-3 proceeded to trial, which began on September 15, 2003 and lasted six days. The Court declared a mistrial after the jury was unable to reach a unanimous verdict.

A second trial on the Section 14(e) count commenced on September 29, 2003, and after four days, the jury rendered a guilty verdict. In the second trial, after the Government concluded its case, Cassese moved for a judgment of acquittal pursuant to Rule 29. See Fed.R.Crim.P. 29. He advanced a number of arguments in support of the motion, including a contention that under Section 14(e) the Government was required, but failed, to prove that Cassese knew the transaction was a tender offer and that the Government’s evidence of criminal intent was circumstantial and consistent with his innocence, or at most, equally supported inferences of innocence and guilt. This motion was denied at that time without prejudice to its later renewal. Following the guilty verdict, Cassese renewed his Rule 29 motion, which Judge Sweet granted in a thoughtful opinion. Cassese II, 290 F.Supp.2d at 445.

The District Court concluded that, in criminal prosecutions under Section 14(e) and Rule 14e-3, where no other securities laws violations are alleged, the Government, to prove willfulness, must prove that the defendant believed that the material non-public information he traded upon related to, or most likely related to, a tender offer. Cassese II, 290 F.Supp.2d at 448-57. The Court concluded that the evidence at trial was insufficient to support the jury’s finding that Cassese acted with criminal intent. Id. The District Court also held, in the alternative, that a new trial would be warranted should this Court reverse the judgment of acquittal. Id.

On appeal, the Government takes issue with each of these conclusions. Because we believe the Government’s proof of criminal intent was insufficient even under its more expansive theory of willfulness, we do not reach the difficult question of whether the Government must prove that a defendant believed a transaction related to a tender offer where only a violation of Section 14(e) is charged. We review de novo this insufficiency question. United States v. Reyes, 302 F.3d 48, 52 (2d Cir.2002).

Discussion

I

Rule 14e-3 states:

If any person has taken a substantial step or steps to commence, or has commenced, a tender offer ..., it shall constitute a fraudulent, deceptive or manipulative act or practice within the meaning of section 14(e) of the Act for any other person who is in possession of material information relating to such tender offer which information he knows ... is nonpublic and which he knows ... has been acquired directly or indirectly [from one of the parties involved in the tender offer to purchase or sell certain securities].

17 C.F.R. § 240.14e-3(a).

To begin, we note that although civil liability follows from any violation of the securities laws regardless of whether the violation was willful, in order to establish a criminal violation of the securities laws, the Government must show that the defendant acted willfully. 15 U.S.C. § 78ff(a). This Court has defined willfulness as “a realization on the defendant’s part that he was doing a wrongful act” under the securities laws, United States v. Peltz, 433 F.2d 48, 55 (2d Cir.1970), in a situation where the “ ‘the knowingly wrongful act involved a significant risk of effecting the violation that has occurred,’ ” Metromedia Co. v. Fugazy, 983 F.2d 350, 364 (2d Cir.1992) (quoting Peltz, 433 F.2d at 55).

The Government argues that it was not required to prove that Cassese believed that he was violating a particular law, nor that he knew he was violating a rule that governed trading related specifically to a tender offer. Instead, the Government contends, all that was needed was proof beyond a reasonable doubt that Cassese realized that he was committing a wrongful act. The Government contends that the evidence showed that Cassese believed it was unlawful to trade securities based upon insider information when he purchased DPRC shares, and that this realization was enough to establish a willful violation of Rule 14e-3 even if he was not aware that the trades violated a rule regulating trading in connection with tender offers. But even under the Government’s relaxed theory of criminal liability, we conclude that it did not adduce enough evidence to prove beyond a reasonable doubt that Cassese believed that he was acting unlawfully.

II

Following a jury verdict of guilty, we reverse a district court’s judgment of acquittal on grounds of insufficient evidence if we determine that “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Espaillet, 380 F.3d 713, 718 (2d Cir.2004) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In this vein, “the defendant who is challenging the sufficiency of the evidence bears a heavy burden.” Id. (internal quotation marks omitted). However, the defendant’s heavy burden is not insurmountable. A district court’s judgment of acquittal must be upheld if “no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003); see also United States v. Glenn, 312 F.3d 58, 63 (2d Cir.2002).

In applying these principles, we, of course, are careful to avoid usurping the role of the jury since Rule 29 “does not provide the trial court with an opportunity to substitute its own determination of ... the weight of the evidence and the reasonable inferences to be drawn for that of the jury.” Espaillet, 380 F.3d at 718; see also United States v. Guadagna, 183 F.3d 122, 129 (2d Cir.1999). Additionally, and of critical importance, the evidence must be viewed in its totality, Glenn, 312 F.3d at 69, “as each fact may gain color from others,” Guadagna, 183 F.3d at 130. But at the end of the day, “if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt.” Glenn, 312 F.3d at 70 (internal quotation marks omitted).

Here, the question is whether the evidence, viewed in its entirety, was sufficient to support a jury’s finding that Cassese willfully violated the securities laws. The Government contends that it provided substantial evidence on this point that, viewed as a whole and with all permissible inferences drawn in its favor, supported the verdict and that the District Court erred when it reached a different conclusion. We disagree.

The Government’s proof at trial that Cassese willfully violated a criminal law consisted of five pieces of evidence: (1) Cassese’s use of two brokerage accounts; (2) the timing of the DPRC purchase; (3) Cassese’s desire to cancel the trades; (4) Cassese’s conversation with Goldsmith; and (5) the Proposed Confidentiality Agreement. Cassese II, 290 F.Supp.2d at 452-456.

The Government argues that this evidence, when taken together, demonstrates Cassese’s willfulness. First, his use of multiple accounts suggests that he was attempting to conceal his unlawful activity. Second, evidence that he tried to undo or “break” the trade and the fact that at some point after the trade, he told Goldsmith that he had made a “mistake” when he purchased the DPRC stock, demonstrate his consciousness of guilt. Third, the fact that Cassese stood to receive significant personal financial benefits in the event of a Compuware-Computer Horizons transaction, and his anger when he learned the transaction would not be consummated, offer proof of his motive for engaging in unlawful conduct. Finally, the Confidentiality Agreement pertaining to a proposed transaction between Compuware and Computer Horizons, which was faxed to Cassese, specifically warned him that trading upon information received pursuant to the merger negotiations might violate the federal securities laws and made him aware that his purchase of DPRC shares was potentially unlawful.

Before analyzing the Government’s evidence, it is helpful to keep in mind the context in which the trades occurred. In purchasing the DPRC shares, Cassese did not breach any fiduciary duty, nor did he misappropriate any confidential information. See Cassese I, 273 F.Supp.2d at 485-88. The information Cassese had received was not related to Computer Horizons or to any company in which he could be considered an insider by virtue of a directorship or otherwise. Accordingly, he was under no legal duty to refrain from trading on the information by virtue of being an insider, or to keep it confidential. Finally, and significantly, the Government did not prove — and does not contend — that, when Cassese traded, he knew DPRC would be the subject of a tender offer. In other words, the Government contends it proved willfulness despite the lack of any of the traditional warning signals that would put one on notice that he ought to refrain from trading.

(1) Cassese’s Use of Two Brokerage Accounts

The Government argues that the jury was permitted to conclude .that Cassese placed smaller trades in separate accounts in order to reduce the. risk of detection of conduct he believed to be unlawful. It rests this conclusion on the fact that Cassese purchased DPRC shares through two different brokerage accounts, and that this was the only instance in which he purchased the same security through multiple accounts on the same day.

This argument is, simply stated, frivolous. It is commonplace for investors to maintain accounts with different broker-dealers. Brokers and brokerage houses have different strengths and specialities. Investment objectives, strategies and results change over the years, making changes in brokers a natural, and indeed common, occurrence. Brokers come and go, and many investors choose to leave relationships to desuetude rather than to sever them. Consequently, for any number of personal as well as investment-related reasons, a great many investors prefer to maintain relationships with multiple brokerage houses. Since Cassese had long had accounts at several firms, and in the past had held the same stock in different accounts, his use of two accounts to purchase DPRC shares — at least in the absence of more proof from the Government — could have easily been the result of random circumstances.

The evidence reveals that Cassese initially called Moschella to place an order in his Morgan Stanley account but did not reach him. Cassese then called Pizzutello and placed an order for 10,000 shares of DPRC with his firm. And when Moschella returned his call, Cassese told him to sell his shares in another company and to purchase 5,000 shares of DPRC, thereby realizing a substantial profit on the sold shares and giving his son’s friend a commission. It is reasonable to conclude that Cassese initially may have intended only to ask Moschella to make the purchase, placed an order with Pizzutello when he could not reach Moschella, and then went ahead and placed a second order with Moschella when he called back because Cassese wanted to realize his profit on another investment and to give his son’s friend a commission. The fact that Cassese left a message for Moschella and only placed an order with him when he called back, after Cassese had already instructed Pizzutello to purchase DPRC shares, is, again, entirely consistent with innocence. More to the point, under the circumstances of this case, the existence of the two accounts provided no viable proof of criminal intent.

Cassese purchased the DPRC shares in his own name, not through a nominee. The Government did not dispute that he was well aware, as a consequence of years as an investor, of the paper trail generated by trading activity, including the confirmation slips and the monthly statements he received at home. The Government’s contention that Cassese thought two trades of 10,000 shares costing $132,500 and 5,000 shares costing $66,250, respectively, would go undetected, but that a trade of 15,000 shares costing $198,750 would not, is not plausible since the two trades would have generated twice the paper trail of the single transaction. Moreover, the sizes of the DPRC transactions were consistent with Cassese’s prior trading practices. For example, he had previously effected trades as high as $300,000 in his Morgan Stanley account and as high as $400,000 in his Merrill Lynch account. We are baffled as to why the Government believes that conduct that substantially increases the risk of apprehension can, at the same time, constitute proof of concealment.

(2) Cassese’s Attempt to “Break the Trade”

The Government also argues that because Cassese asked Donald Pizzutello to undo the trade sometime after Pizzutello sold the DPRC shares in Cassese’s Merrill Lynch account, the jury could properly infer that Cassese knew it was unlawful to purchase DPRC shares when he did. Here too we are unpersuaded. The fact that Cassese later inquired about canceling the trades supplies only a modicum of information about his intentions at the relevant time — that is, when he bought the stock. This is especially so since Moschel-la’s trial testimony was that Cassese was surprised to hear the tender offer announcement. The District Court properly concluded that Cassese’s attempt to cancel the trades reflects his attitude on the day he sold the stock, not the day he bought it. Cassese II, 290 F.Supp.2d at 454. Given that Cassese was acting on public information when he eventually sold DPRC shares, and Rule 14e~3 specifically proscribes trading on non-public information, only his mind set on the day he purchased the shares is relevant. If Cassese did not realize the purchase was unlawful until June 24 — the day the tender offer was publicly announced — and sought to break the trade for that reason, he would not have willfully violated Rule 14e-3 when he purchased the shares. Furthermore, the District Court correctly held that although evidence of after-the-fact consciousness of guilt may have independent probative force, and may strengthen inferences supplied by other pieces of evidence, such evidence is “insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant’s innocence as it is to the Government’s theory of guilt.” United States v. Johnson, 513 F.2d 819, 824 (2d Cir.1975); Glenn, 312 F.3d at 69; see also United States v. Scheibel, 870 F.2d 818, 822 (2d Cir.1989).

In addition, the inference of guilt the Government seeks to draw is further undermined by Pizzutello’s testimony that it was Cassese who reminded him of the cancellation call and urged him to call the FBI back to set the record straight regarding the call. If the Government’s inference were correct — that from the beginning Cassese sought to conceal the trade— it is highly, implausible that he would urge Pizzutello to correct his statement to the FBI about information the Government regards on appeal as so damaging. In any event, viewed objectively, this eonseiousness-of-guilt evidence is as consistent with innocence as with guilt. To the extent Cassese sought to cancel the trade because he realized that the stock purchase was unlawful, it is equally possible that he realized this on the day he sought to cancel the trade as on the day of the purchase. Even accepting arguendo the Government’s analysis, this bit of evidence does relatively little to advance the Government’s case to the beyond-a-reasonable-doubt threshold.

(3) Cassese’s Statement to Goldsmith

The Government argues that based on Goldsmith’s testimony that Cassese admitted to him that “he had made a stupid mistake,” the jury was entitled to infer that Cassese had in effect admitted that he had purchased DPRC stock while knowing it was wrong to do so. We disagree. Goldsmith testified that he only had a “vague recollection” and “[didn’t] recall the specific words” of the conversation. (Tr. 208). Moreover, he testified that he did not recall Cassese admitting to any wrongdoing. Most importantly, the conversation with Goldsmith took place two months after Cassese purchased the stock. Even when considered along with the Government’s other evidence, Goldsmith’s testimony is weak evidence as to Cassese’s state of mind at the time of the purchase, for even if Cassese realized one day after making the purchase that it was a mistake to do so because it was potentially unlawful, he would not be liable for violating Rule 14e-3. Viewing this bit of evidence in a light most favorable to the Government, the fact that Cassese may have felt he made a mistake two months after the trades makes, at best, the most modest of contributions to the Government’s responsibility of proving beyond a reasonable doubt that Cassese willfully violated the securities laws.

(4) Evidence as to Cassese’s Motive

The Government argues that the jury could properly rely on evidence adduced at trial regarding Cassese’s motive. Specifically, the Government points to Cassese’s substantial financial stake in completion of the Compuware-Computer Horizons transaction ($33 million), and his anger following the deal’s collapse. As further proof of Cassese’s motive, the Government also focuses on Goldsmith’s testimony that Cassese acknowledged to him that he was motivated by anger when he decided to purchase the DPRC shares. Specifically, the Government claims that Cassese admitted to Goldsmith that he purchased DPRC stock because he was upset about the fact that his company was not going to be purchased.

This contention by the Government rests on the thinnest of evidentiary predicates. Goldsmith testified:

Q: When you spoke to John Cassese in August of 1999, is it your recollection that he said that he was upset, or is that your conclusion?

A: I have a vague recollection. I don’t know if those were the actual words, but that is my impression of what I took away.

Q: With respect to the question the government asked you at the end about your conversation with Mr. Cassese in August, did he say to you in words or substance that the reason he bought the DPRC stock on June 22nd was that he was upset abut the Compuware-CHC Computer Horizons deal not going through?

A: Again I don’t recall the specific words, but that was the impression that I got when I talked to him.

(Tr. 208). Further, Goldsmith was never certain as to what, if anything, Cassese was upset about. The District Court made two observations about the Government’s theory of motive. First, Goldsmith’s testimony did little to prove the Government’s theory. Second, even had the Government proved that Cassese was motivated by anger, “[t]he securities laws do not prohibit people from purchasing stock when they are angry.” Cassese II, 290 F.Supp.2d at 455. Both observations are correct. Purchasing as a consequence of anger does not equate to willful violation of the securities laws.

(5) The Confidentiality Agreement

Pointing to the Confidentiality Agreement faxed to Cassese along with the May 4, 1999 Letter of Intent, which specifically warned that trading upon information received pursuant to merger negotiations with Compuware might violate the securities laws, the Government argues that the jury was permitted to infer that Cassese read the Confidentiality Agreement, and was specifically on notice that his purchases of DPRC shares based on information from Compuware would be illegal. Although the evidence established that Cassese received the document, Cassese never signed the document, and the Government adduced no evidence that he read it. The District Court properly instructed the jury that it should only consider the proposed Confidentiality Agreement if it had been shown that Cassese read the document. Cassese II, 290 F.Supp.2d at 455 n. 12. Since we presume that jurors follow the Court’s instructions, see United States v. Joyner, 201 F.3d 61, 69-70 (2d Cir.2000), and since there is simply no evidence in the record that Cassese read the document, we are confident that it played no part in the jury’s deliberations. As the District Court properly concluded, the Confidentiality Agreement “has no probative value with respect to Cassese’s intent.” Cassese II, 290 F.Supp.2d at 455.¹

Since few events in the life of an individual assume the importance of a criminal conviction, we take the “beyond a reasonable doubt” requirement with utmost seriousness. Here, we find that the Government’s evidence failed to reach that threshold. As discussed above, viewed singly, each of the areas of proof by the Government was characterized by modest evidentiary showings, equivocal or attenuated evidence of guilt or a combination of the three. More importantly, when the evidence is viewed in its totality, the evidence of willfulness is insufficient to dispel reasonable doubt on the part of a reasonable fact finder. Viewed in the light most favorable to the prosecution, the evidence, at best, gives “equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence,” and thus “a reasonable jury must necessarily entertain a reasonable doubt." Glenn, 312 F.3d at 70 (citation omitted).

Conclusion

For the foregoing reasons, we affirm the District Court’s judgment of acquittal.

1 . Finally, the Government, at oral argument, emphasized Cassese’s prior business experience as important evidence supporting its theory of willfulness. The Government argues that the jury was entitled to infer that the CEO of a publicly traded company with twenty-seven years of business experience would be familiar with the securities laws and the manner in which trades are monitored by securities regulators, and that his actions support the theory that he willfully violated the securities laws. However, although the Government's evidence establishes that Cassese was familiar with some aspects of securities law, the Government adduced no evidence showing that Cassese ever participated in a tender offer or that he had any familiarity with the laws pertaining to tender offers. In any event, we easily conclude that Cassese’s prior experience is a fact as consistent with his innocence as with the Government’s theory of guilt. Cassese could have believed that he was entitled-to trade on Karmanos' information since it did not relate to his company, he was not involved in the deal, he had no fiduciary relationship with Karmanos or Compuware, and he had no reason to believe that the transaction would be a tender offer.