Banco Espanol de Credito v. Security Pacific National Bank

ALTIMARI, Circuit Judge:

Plaintiffs-appellants, purchasers of various “loan participations” sold by defendants-appellees Security Pacific National Bank and Security Pacific Merchant Bank (collectively “Security Pacific”), appeal from a judgment entered in the United States District Court for the Southern District of New York (Milton Pollack, Judge), granting summary judgment for Security Pacific and dismissing plaintiffs’ complaints. In the two underlying actions, which were consolidated for appeal, plaintiffs charged that Security Pacific had withheld material information on the financial solvency of Integrated Resources, Inc. (“Integrated”) when Security Pacific' sold plaintiffs portions of loan notes owed by Integrated to Security Pacific. Plaintiffs sought to rescind their purchase agreements based on an alleged violation of Section 12(2) of the 1933 Securities Act and sought damages for Security Pacific’s alleged breach of various common law duties.

Plaintiffs moved for summary judgment on the securities claim and Security Pacific cross-moved for summary judgment on all claims. In granting defendants’ motion for summary judgment, the district court first rejected plaintiffs’ securities claim, holding that the loan participations at issue were not “securities” within the meaning of the 1933 Act, and were therefore not governed by the federal securities laws. The district court also rejected plaintiffs’ common law claims, finding that Security Pacific had no duty to disclose information on Integrated’s financial condition under either the terms of the loan participation agreements signed by plaintiffs or under general principles of common law.

On appeal, plaintiffs contend that the district court erred in: (1) determining that loan participations sold by Security Pacific were not securities; and (2) determining that Security Pacific owed no duty to disclose negative financial information about Integrated.

For the reasons set forth below, we affirm the judgment of the district court.

BACKGROUND

In 1988, Security Pacific extended a line of credit to Integrated permitting Integrated to obtain short-term unsecured loans from Security Pacific. Security Pacific subsequently made a series of short-term loans to Integrated. Security Pacific sold these loans, in whole or in part, to various institutional investors at differing interest rates. Resales of these loans were prohibited without Security Pacific’s express written consent. The practice of selling loans to other institutions is known as “loan participation.” Short-term loan participation permits a primary lender such as Security Pacific to spread its risk, while at the same time allowing a purchaser with excess cash to earn a higher return than that available on comparable money market instruments. Security Pacific, as manager of the loans, earned a fee equal to the difference between the interest paid by the debtor and the lower, interest paid to the purchaser.

Security Pacific assumed no responsibility for the ability of Integrated to repay its loans. Indeed, each purchaser of loan par-ticipations was required to enter into a Master Participation Agreement (“MPA”), which contained a general disclaimer providing, in relevant part, that the purchaser “acknowledges that it has independently and without reliance upon Security [Pacific] and based upon such documents and information as the participant has deemed appropriate, made its own credit analysis.”

In late 1988, Integrated began to encounter financial difficulties. In April 1989, Security Pacific refused a request by Integrated to extend further credit. Despite this refusal, Security Pacific continued to sell loan participations on Integrated’s debt. Indeed, from mid-April through June 9, 1989, Security Pacific sold seventeen different loan participations to plaintiffs-appellants. Unable to obtain enough working capital, Integrated began defaulting on its loans on June 12, 1989. Integrated subsequently declared bankruptcy.

As a result of Integrated's default, two sets of investors, who had purchased the seventeen loan participations, initiated separate actions against Security Pacific in the United States District Court for the Southern District of New York. Contending that the loan participations were “securities” within the meaning of the Securities Act of 1933 (“the 1933 Act”), plaintiffs sought to rescind their purchase agreements by alleging that Security Pacific had failed to disclose to them material facts about Integrated’s financial condition in violation of § 12(2) of the 1933 Act. 15 U.S.C. § 77/ (2). Plaintiffs also claimed that Security Pacific’s failure to disclose constituted a breach of Security Pacific’s implied and express contractual duties under its MPA’s, and a breach of Security Pacific’s duty to disclose material information based on superior knowledge. Based on these common law claims, plaintiffs sought to recover their investment plus unpaid interest. Plaintiffs in each of the two actions moved for partial summary judgment on the securities claim. Security Pacific cross-moved for summary judgment on all claims. The cases were consolidated for argument.

In ruling on these motions, the district court concluded that the loan participations were not “securities” within the meaning of the Securities Act of 1933, and that, therefore, plaintiffs could not assert a violation under § 12(2) of this Act. In addition, the district court held that the express disclaimer provisions in the MPA precluded plaintiffs’ common law claims. Accordingly, the district court granted summary judgment to Security Pacific and dismissed the complaints. See Banco Espanol de Credito v. Security Pacific National Bank, 763 F.Supp. 36 (S.D.N.Y.1991). Plaintiffs now appeal.

DISCUSSION

Summary judgment is properly granted when “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986); Viacom Int’l, Inc. v. Icahn, 946 F.2d 998, 1000 (2d Cir.1991), cert. denied, — U.S. , 112 S.Ct. 1244, 117 L.Ed.2d 477 (1992). We review the district court’s grant of summary judgment de novo and resolve all ambiguities and inferences from the underlying facts in favor of the party against whom summary judgment is sought. See, e.g., Viacom Int’l, Inc., 946 F.2d at 1000.

Section 2(1) of the 1933 Act provides in pertinent part:

[Ujnless the context otherwise requires — (1) the term “security” means any note ... evidence of indebtedness, ... investment contract, ... or any certificate of interest or participation in ... any of the foregoing.

15 U.S.C. § 77b(l). It is well-settled that certificates evidencing loans by commercial banks to their customers for use in the customers’ current operations are not securities. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 65, 110 S.Ct. 945, 951, 108 L.Ed.2d 47 (1990) (citing Chemical Bank v. Arthur Andersen & Co., 726 F.2d 930, 939 (2d Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984)). However, as the district court noted, a participation in an instrument might in some circumstances be considered a security even where the instrument itself is not. See Banco Espanol de Credito, 763 F.Supp. at 41.

With respect to loan participations, the district court reasoned that “because the plaintiffs ... did not receive an undivided interest in a pool of loans, but rather purchased participation in a specific, identifiable short-term Integrated loan, the loan participation did not have an identity separate from the underlying loan.” Id. at 42. Thus, Judge Pollack reasoned, because under Chemical Bank the loans to Integrated were not securities, the plaintiffs’ purchase of discrete portions of these loans could not be considered securities.

On appeal, plaintiffs concede that traditional loan participations do not qualify as securities. Instead, plaintiffs contend that the peculiar nature of Security Pacific’s loan participation program — which aimed at the sale of 100% of its loans through high speed telephonic sales and often prepaid transactions — qualified these loan par-ticipations as securities. Specifically, plaintiffs argue that the loan participations sold by Security Pacific are more properly characterized as securities — in the .nature of “notes” — as enumerated in § 2(1) of the 1933 Act.

In examining whether the loan participations could be considered “notes” which are also securities, the district court applied the “family resemblance” test set forth by the Supreme Court in Reves, 494 U.S. at 63-67, 110 S.Ct. at 950-952. Under the family resemblance test, a note is presumed to be a security unless an examination of the note, based on four factors, reveals a strong resemblance between the note and one of a judicially-enumerated list of instruments that are not securities. Id. at 65, 110 S.Ct. at 951. If the note in question is not sufficiently similar to one of these instruments, a court must then consider, using the same four factors, whether another category of non-security instruments should be added to the list. Id. at 67, 110 S.Ct. at 951. The four Reves factors to be considered in this examination are: (1) the motivations that would prompt a reasonable buyer and seller to enter into the transaction; (2) the plan of distribution of the instrument; (3) the reasonable expectations of the investing public; and (4) whether some factor, such as the existence of another regulatory scheme, significantly reduces the risk of the instrument, thereby rendering application of the securities laws unnecessary. Id. at 66-67, 110 S.Ct. at 951-952.

In addressing the first Reves factor, the district court found that Security Pacific was motivated by a desire to increase lines of credit to Integrated while diversifying Security Pacific’s risk, that Integrated was motivated by a need for short-term credit at competitive rates to finance its current operations, and that the purchasers of the loan participations sought a short-term return on excess cash. Based on these findings, the district court concluded that “the overall motivation of the parties was the promotion of commercial purposes” rather than an investment in a business enterprise. Banco Espanol de Credito, 763 F.Supp. at 42-43.

Weighing the second Reves factor — the plan of distribution of the instrument — the district court observed that only institutional and corporate entities were solicited and that detailed individualized presentations were made by Security Pacific’s sales personnel. The district court therefore concluded that the plan of distribution was “a limited solicitation to sophisticated financial or commercial institutions and not to the general public.” Id. at 43. We agree.

The plan of distribution specifically prohibited resales of the loan participations without the express written permission of Security Pacific. This limitation worked to prevent the loan participations from being sold to the general public, thus limiting eligible buyers to those with the capacity to acquire information about the debtor. This limitation also distinguishes Gary Plastic Packaging v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230 (2d Cir.1985), which involved a secondary market for the instruments traded in that case.

With regard to the third factor — the reasonable perception of the instrument by the investing public — the district court considered the expectations of the sophisticated purchasers who signed MPA’s and determined that these institutions were given ample notice that the instruments were participations in loans and not investments in a business enterprise. Id.

Finally, the district court noted that the Office of the Comptroller of the Currency has issued specific policy guidelines addressing the sale of loan participations. Thus, the fourth factor — the existence of another regulatory scheme — indicated that application of the securities laws was unnecessary. Id.

Thus, under the Reves family resemblance analysis, as properly applied by the district court, we hold that the loan partic-ipations in the instant case are analogous to the enumerated category of loans issued by banks for commercial purposes and therefore do not satisfy the statutory definition of “notes” which are “securities.” Since the loan participations do not meet the statutory definition of securities, plaintiffs may not maintain their action for relief under § 12(2) of the 1933 Act.

We rule only with respect to the loan participations as marketed in this case. We recognize that even if an underlying instrument is not a security, the manner in which participations in that instrument are used, pooled, or marketed might establish that such participations are securities. See Gary Plastic Packaging, 756 F.2d at 240-42.

Turning to plaintiffs’ contractual and other common-law claims, we agree with the district court that the waiver provision in the MPA’s signed by the loan participants specifically absolved Security Pacific of any responsibility to disclose information relating to Integrated’s financial condition. Moreover, as an arms length transaction between sophisticated financial institutions, the law imposed no independent duty on Security Pacific to disclose information that plaintiffs could have discovered through their own efforts. See, e.g., Aaron Ferer & Sons v. Chase Manhattan Bank, 731 F.2d 112, 122 (2d Cir.1984).

CONCLUSION

Based on the foregoing, and on Judge Pollack’s well-reasoned opinion, we affirm the judgment of the district court.