Hayes v. Crown Central Petroleum Corp.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES J. HAYES; THOMAS BOOTS, on 
behalf of themselves and all others
similarly situated,
Plaintiffs-Appellants,
v.
CROWN CENTRAL PETROLEUM
CORPORATION; MICHAEL F. DACEY;  No. 02-2190
STANLEY A. HOFFBERGER; BARRY L.
MILLER; HENRY A. ROSENBERG, JR.;
JOHN E. WHEELER, JR.; JACK AFRICK;
HAROLD RIDLEY; CREDIT SUISSE FIRST
BOSTON CORPORATION; ROSEMORE,
INCORPORATED; FRANK B. ROSENBERG,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-02-122-A)
Argued: May 6, 2003
Decided: October 17, 2003
Before LUTTIG, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
2 HAYES v. CROWN CENTRAL PETROLEUM CORP.
COUNSEL
ARGUED: Edward M. Selfe, BRADLEY, ARANT, ROSE &
WHITE, L.L.P., Birmingham, Alabama, for Appellants. Anne Marie
Whittemore, MCGUIREWOODS, L.L.P., Richmond, Virginia; Jona-
than Lee Greenblatt, SHEARMAN & STERLING, Washington, D.C.,
for Appellees. ON BRIEF: John F. Goodman, BRADLEY, ARANT,
ROSE & WHITE, L.L.P., Birmingham, Alabama; Michael Straus,
Mark J. Schirmer, STRAUS & BOIES, L.L.P., Birmingham, Ala-
bama, for Appellants. Elizabeth F. Edwards, MCGUIREWOODS,
L.L.P., Richmond, Virginia; Neil H. Koslowe, Suzanne Miller Trinh,
SHEARMAN & STERLING, Washington, D.C.; Lawrence Portnoy,
Kimberley D. Harris, DAVIS, POLK & WARDWELL, New York,
New York; Robert S. Bennett, Richard L. Brusca, Mary L. Smith,
SKADDEN, ARPS, MEAGHER, SLATE & FLOM, L.L.P., Wash-
ington, D.C.; Amy Berman Jackson, John Thorpe Richards, Jr.,
TROUT & RICHARDS, P.L.L.C., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Former shareholders of Crown Central Petroleum Corporation
("Crown") brought a class action against Crown; members of Crown’s
Board of Directors; Rosemore, Inc. ("Rosemore"); and Credit Suisse
First Boston Corporation ("CSFB"), alleging violations of Section
14(a) and 20(a) of the Securities Exchange Act of 1934 ("the Act")
and Maryland state law. The district court granted the defendants’
motion to dismiss, and the plaintiffs appeal. For the reasons set forth
below, we affirm in part, vacate in part, and remand for proceedings
consistent with this opinion.
I.
In February 1999, Crown, a refiner and marketer of petroleum
products, retained CSFB as a financial advisor and announced that it
HAYES v. CROWN CENTRAL PETROLEUM CORP. 3
was exploring strategic alternatives. At the recommendation of CSFB,
Crown elected to pursue the sale or merger of Crown as a whole or
the sale of its refining assets. In January 2000, Rosemore, Crown’s
largest shareholder, expressed interest in purchasing Crown. At that
time, Henry Rosenberg, Jr. served as Chairman, President, and Chief
Executive Officer of Crown as well as Chairman of the Board of
Rosemore. The directors of Crown, other than Rosenberg, subse-
quently constituted themselves as an independent committee that
would consider offers to purchase Crown. The independent commit-
tee agreed to pay CSFB a $3.27 million fee, of which $1.5 million
was contingent upon the completion of a purchase deal with Rose-
more.
In April 2000, Rosemore proposed to enter into a cash-out merger
with Crown pursuant to which the public shareholders of Crown
would receive $9.50 per share, and CSFB rendered an opinion that
this offer was fair to the shareholders. The independent committee,
and the Board of Directors thereafter, approved the merger. Before a
shareholder vote could be taken on the Rosemore proposal, APEX Oil
Company, a privately owned entity of the Novelly Group ("Novelly"),
proposed a stock-for-stock merger valued at $10.50 per share. In the
wake of the APEX offer, Crown’s shareholders defeated the Rose-
more proposal.
After the failed merger attempt, Rosemore and Novelly entered
into negotiations for the sale of Novelly’s stock to Rosemore, and
Rosemore again sought a merger with Crown. An agreement was
reached in which Novelly would vote its Crown shares in favor of the
Crown and Rosemore merger, and, in return, Rosemore would pay
$10.50 per share to all shareholders plus an additional $1.75 million
to Novelly for the expenses incurred during its pursuit of Crown.
On December 14, 2000, Crown held its annual shareholder meeting
and elected a new Board of Directors, all of whom are named defen-
dants. Immediately following the meeting, the Board of Directors met
and appointed three of its members as the new independent commit-
tee. On December 16, 2000, CSFB presented an oral opinion to the
independent committee, subsequently confirmed in writing, that the
offer of $10.50 per share was fair to Crown shareholders. CSFB spe-
cifically noted that it had not performed, and had not been asked to
4 HAYES v. CROWN CENTRAL PETROLEUM CORP.
perform, a liquidation value of Crown. CSFB stated, however, that it
did not believe that this liquidation value would produce a greater
value for shareholders than the proposed merger with Rosemore. At
the conclusion of the meeting, the independent committee voted to
recommend the Rosemore proposal to the Crown Board of Directors.
The independent committee also recommended that the merger
receive a majority of the votes cast, excluding those of Rosemore and
its affiliates. The Novelly Group votes, however, already pledged to
vote in favor of the merger, were not to be considered as Rosemore
votes. Subsequently, the Crown Board of Directors voted unani-
mously to approve the merger.
Crown prepared a proxy statement, which relied upon the CSFB
report, asserting that the terms of the merger were fair to, and in the
best interests of, Crown’s public shareholders. The proxy statement,
dated January 31, 2001, and mailed to shareholders on or about Feb-
ruary 2, 2001, set forth various indicators of Crown’s economic
health. For example, the proxy statement included information on an
industry refining margin known as the Gulf Coast 20-day delayed
3/2/1 crack spread. A positive crack spread indicates that the value of
refined products is more than the cost of the crude oil used to produce
it. Conversely, a negative crack spread indicates that the value of the
refined products is less than the cost of the crude oil, resulting in
losses to refiners such as Crown. The proxy statement asserted that
the crack spread fell from an average of $4.89 per barrel for the first
eleven months of 2000 to a negative $1.68 per barrel in December
2000. The statement noted, however, that the crack spread was
expected to be approximately $4.85 per barrel for the first six months
of 2001.
The proxy statement also set forth a selected companies analysis
performed by CSFB that utilized financial, operating and stock mar-
ket data of other petroleum refiners and marketers to estimate the
value of Crown stock. The equity market value of these companies
was calculated as multiples of their estimated earnings before interest,
taxes, depreciation, and amortization ("EBITDA") for calendar years
2000 and 2001. According to the proxy statement, CSFB applied
these multiples to Crown’s 2000 and 2001 EBITDA and to Crown’s
1997-1999 average EBITDA to approximate the share price of Crown
stock and calculated a reference range of $4.28 to $7.79 per share.
HAYES v. CROWN CENTRAL PETROLEUM CORP. 5
In addition, the proxy statement included a valuation of Crown’s
refineries based upon recent industry transactions involving compara-
ble refineries; a statement regarding the settlement of a labor dispute;
information regarding the termination of Crown’s contract with
Statoil Marketing and Trading, Inc. ("Statoil"); and a statement that
Crown did not have plans to sell material amounts of its assets.
On March 7, 2001, Crown shareholders approved the merger by the
requisite margin. The plaintiffs subsequently brought this class action,
alleging (1) that Crown and the individual members of the Board of
Directors issued a proxy statement containing false or misleading
statements of material facts or omitting material facts, in violation of
Section 14(a) of the Act; (2) that Crown, the individual members of
the Board of Directors, and CSFB knowingly issued a false statement
of opinion in the proxy statement, in violation of Section 14(a) of the
Act; (3) that Crown, the individual members of the Board of Direc-
tors, and CSFB issued a false statement of opinion that they should
have known was false, in violation of Section 14(a) of the Act; and
(4) that Rosemore and Henry Rosenberg, Jr. were controlling persons
under Section 20(a) of the Act. The plaintiffs also asserted a claim
under Maryland law, alleging that Rosemore and the individual mem-
bers of the Crown Board breached a fiduciary duty owed to Crown
shareholders and that CSFB aided and abetted the directors’ breach.
As to all of the claims, the plaintiffs excluded any allegations of
fraudulent conduct. The district court granted the defendants’ motion
to dismiss all claims, and this appeal followed.
II.
We review de novo the dismissal of claims pursuant to Fed. R. Civ.
P. 12(b)(6). Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002). A
motion to dismiss should not be granted unless it appears certain that
the plaintiff can prove no set of facts that would support its claim and
entitle it to relief, and the complaint should be viewed in the light
most favorable to the plaintiff. Id. To survive a motion to dismiss a
securities fraud complaint, a plaintiff must also comply with the
heightened pleading requirements imposed by the Private Securities
Litigation Reform Act ("PSLRA"). Specifically, the PSLRA requires
that:
6 HAYES v. CROWN CENTRAL PETROLEUM CORP.
the complaint shall specify each statement alleged to have
been misleading, the reason or reasons why the statement is
misleading, and, if an allegation regarding the statement or
omission is made on information and belief, the complaint
shall state with particularity all facts on which that belief is
formed.
15 U.S.C. § 78u-4(b)(1). In any action requiring proof that the defen-
dant acted with a particular state of mind, the facts alleged must give
rise "to a strong inference that the defendant acted with the required
state of mind." 15 U.S.C. § 78u-4(b)(2). If the complaint does not
meet these pleading requirements, the district court "shall, on the
motion of any defendant, dismiss the complaint." 15 U.S.C. § 78u-
4(b)(3)(A).
Section 14(a) of the Act makes unlawful the solicitation of a proxy
regarding any security, by way of interstate commerce, in contraven-
tion of the rules and regulations prescribed by the Securities and
Exchange Commission ("SEC"). 15 U.S.C. § 78n(a). Of relevance
here, SEC Rule 14a-9 prohibits false or misleading statements with
respect to material facts as well as the omission of material facts nec-
essary to make the statements therein not false or misleading. 17
C.F.R. § 240.14a-9. To prevail in a private cause of action asserting
a violation of Rule 14a-9, a plaintiff must show that (1) the proxy
statement contained a material misrepresentation or omission (2) that
caused the plaintiff injury and that (3) the proxy solicitation was an
essential link in the accomplishment of the transaction. Gen. Elec. Co.
v. Cathcart, 980 F.2d 927, 932 (3rd Cir. 1992) (citing Mills v. Elec.
Auto-Lite Co., 396 U.S. 375, 385 (1970)). A misrepresentation or
omission is material if there is a substantial likelihood that the disclo-
sure of the omitted fact would have been viewed by a reasonable
investor as having significantly altered the total mix of information
made available. TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449
(1976). The Supreme Court has expressly declined to determine what
showing of culpability is required to establish liability for a mislead-
ing proxy statement. Id. at 444, n.7.
The plaintiffs allege that the proxy statement made several material
misrepresentations or omissions of fact that painted a bleak picture of
Crown’s future profitability, thereby inducing Crown’s shareholders
HAYES v. CROWN CENTRAL PETROLEUM CORP. 7
to approve the merger with Rosemore. We address each of these con-
tentions in turn.
A.
We first address plaintiffs’ allegation that the proxy statement mis-
represented the refining margin known as the crack spread. The plain-
tiffs assert that Crown emphasized the negative crack spread for
December 2000, yet omitted the actual crack spread for January 2001,
which the plaintiffs submit to have been $8.64 per barrel. The plain-
tiffs also argue that the proxy statement should have disclosed indus-
try refining margins other than the crack spread.
We conclude, however, that the plaintiffs have failed to allege facts
that would entitle them to relief based upon the defendants’ use of
crack spreads in the proxy statement. There is no indication in the
record that the defendants made any misstatements regarding the
crack spread figures or omitted any material information. While the
proxy statement did indicate that crack spreads fell from an average
of $4.89 per barrel for the first eleven months of 2000 to a negative
$1.68 per barrel in December 2000, it also noted that crack spreads
were expected to improve to approximately $4.85 per barrel for the
first six months of 2001. The plaintiffs do not challenge the accuracy
of these numbers, and the predicted upturn hardly gives the impres-
sion that the crack spreads were expected to remain at low or negative
levels. As to the plaintiffs’ assertion that the omission of the actual
crack spread for January 2001 was misleading, the omission was
immaterial. Because the shareholders were provided with an estimate
of improved crack spreads for the first six months of 2001, we find
unpersuasive the plaintiffs’ contention that the omission of one
month’s actual crack spread significantly altered the total mix of
information made available to investors. See TSC Indus., 426 U.S. at
449. We also find no merit in the plaintiffs’ argument that the proxy
statement was materially misleading because it did not disclose refin-
ing margins other than the crack spread. Rule 14a-9 does not require
that Crown include every conceivable methodology available for the
determination of refining margins. The proxy statement, therefore,
was not materially misleading with respect to crack spreads, and the
plaintiffs cannot survive a motion to dismiss with respect to this issue.
8 HAYES v. CROWN CENTRAL PETROLEUM CORP.
B.
The plaintiffs next allege that Crown omitted from the proxy state-
ment two purchases of refineries in 2000, and, if these industry pur-
chases had been considered in determining the value of Crown’s
assets, the liquidation of Crown would have been more attractive to
the shareholders. The plaintiffs argue on appeal that the refineries
were comparable, but the complaint clearly fails to draw a direct com-
parison. While dismissal under Rule 12(b)(6) is generally disfavored
for inartfully drafted complaints, Mylan Laboratories, Inc. v. Matkari,
7 F.3d 1130 (4th Cir. 1993), this is a securities case, and we must
apply the pleading requirements of the PSLRA. Because the com-
plaint does not state that the refineries were comparable, it fails to
specify the reason why the omission was misleading. See 15 U.S.C.
§ 78u-4(b)(1). Accordingly, the plaintiffs cannot prevail on this issue.
C.
The plaintiffs also allege that Crown omitted from the proxy state-
ment the favorable impact that would result from the settlement of a
labor dispute at Crown’s refinery in Pasadena, Texas. Although the
settlement of the labor dispute did appear in the proxy statement,
Hayes argues that it should have been included in the section titled
"Recent Developments." We find the plaintiffs’ argument to be with-
out merit. Because information regarding the labor dispute was
included in the proxy statement, there was no omission, and the plain-
tiffs have presented no set of facts on this issue that would entitle
them to relief.
D.
The plaintiffs next allege that the proxy statement was misleading
because it treated the termination of Crown’s contract with Statoil as
a detriment to Crown, when in fact the termination of the contract
provided the potential for increased profits. Although a fair reading
of the "Recent Developments" section of the proxy statement would
perhaps lead one to conclude that the termination of the Statoil con-
tract was a negative development for Crown, the plaintiffs have not
alleged that the statements therein—asserting that the conclusion of
the contract would increase Crown’s credit and working capital
HAYES v. CROWN CENTRAL PETROLEUM CORP. 9
requirements at the Pasadena factory—were false. Moreover, the
1999 Form 10-K, filed with the SEC and attached to the proxy state-
ment, plainly revealed the advantages associated with the Statoil con-
tract termination. We therefore conclude that the plaintiffs cannot
prevail on this issue.
E.
The plaintiffs also argue that the proxy statement misrepresented
Crown’s plans regarding the future sale of its assets. According to the
proxy statement, Crown had no plans to sell a material amount of its
assets. The plaintiffs point to a newspaper article, dated five months
after the shareholders approved the merger, reporting that Crown had
been considering the sale of its refineries for more than a year. The
newspaper article, however, fails to demonstrate that the proxy state-
ment was misleading. Crown publicly stated in early 1999, at the time
it hired CSFB, that it was considering the sale of its assets, and this
information was fully disclosed in the proxy statement. Given
Crown’s interest in selling its assets during the months prior to the
merger, it is not surprising that a newspaper article characterized
Crown as having an ongoing interest in the sale of its assets during
the past year. In any case, Crown’s assertion that it had no plans to
sell its assets at the time of the proxy statement did not necessarily
mean that Crown was not considering the eventual sale of those
assets. The plaintiffs, therefore, cannot prevail on this issue.
F.
We turn next to the plaintiffs’ allegation that Crown misrepre-
sented the CSFB selected companies analysis, and that, as a result, the
purported range of share values in the proxy statement was inaccu-
rate. Although the statement described the analysis as utilizing
Crown’s estimated 2000 and 2001 EBITDA, the plaintiffs contend
that CSFB only considered Crown’s 1997-1999 EBITDA in its calcu-
lations regarding the "Pasadena" segment of Crown’s operations. If
the 2000 and 2001 EBITDA had been incorporated into these calcula-
tions, according to the plaintiffs, the per share reference range would
have been $1.51 to $32.26, rather than $4.28 to $7.79. The defendants
counter by noting that the calculations regarding the "Wholesale" seg-
ment of Crown’s operations utilized 2000 and 2001 EBITDA, which
10 HAYES v. CROWN CENTRAL PETROLEUM CORP.
they argue indicates that all segments of Crown’s operations, includ-
ing Pasadena, were calculated properly. The defendants further argue
that any alleged discrepancy in the selected companies analysis is
immaterial.
Our review of the record indicates that the district court did not
consider this issue. We believe that under the circumstances pre-
sented, the case should be remanded so that the district court may
consider in the first instance the manner in which the EBITDA calcu-
lations were used in the selected companies analysis. At this point, we
cannot say, as a matter of law, that the EBITDA figures are correct
or otherwise immaterial. If the price per share of Crown stock should
have been valued as high as $32.26 per share, rather than $7.79 per
share as presented in the proxy statement, this information clearly
would have been material as it would have significantly altered the
total mix made available to shareholders, who had to decide whether
to accept the offer of $10.50 per share under the terms of the merger.
III.
Although we make no judgment as to whether the proxy statement
was misleading with regard to the EBITDA data, our inquiry under
Section 14(a) does not end there. The plaintiffs also allege that
Crown, the Board of Directors, and CSFB knowingly issued an objec-
tively false statement of opinion in the proxy statement.
The Supreme Court has held that Section 14(a) of the Act and Rule
14a-9 apply to statements of opinion with respect to material facts.
Virginia Bankshares v. Sandberg, 501 U.S. 1083 (1991). Liability
may arise under Section 14(a) for false statements of reasons, opinion,
and belief that are knowingly made. Virginia Bankshares, 501 U.S.
at 1087. A statement of opinion has both subjective and objective
components: "as statements that the directors do act for the reasons
given or hold the belief stated and as statements about the subject
matter of the reason or belief expressed." Id. at 1092. Subjective dis-
belief by those asserting an opinion, absent proof that the statement
was false or misleading, is insufficient to establish liability under Sec-
tion 14(a). Virginia Bankshares, 501 U.S. at 1096.1
1
In determining that the complaint did not allege that the statement of
opinion was "knowing" under Virginia Bankshares, the district court
HAYES v. CROWN CENTRAL PETROLEUM CORP. 11
The plaintiffs allege that Crown, the Board of Directors, and CSFB
issued a statement of opinion that the merger price was fair to Crown
shareholders when, in fact, the merger price was not fair (objectively
false) and the defendants knew or should have known that it was not
fair (subjectively false). The district court dismissed these claims,
finding that the plaintiffs had not satisfied the pleading requirements
of the PSLRA by failing to allege facts giving rise to a strong infer-
ence that the defendants knowingly issued a false statement of opin-
ion in the proxy statement. See 15 U.S.C. § 78u-4(b)(2).
The district court, as it did with the plaintiffs’ claim alleging mate-
rial misstatements of fact, did not consider the manner in which the
EBITDA calculations were used in the selected companies analysis.
The claims alleging false statements of opinion, therefore, should also
be remanded to allow the district court to consider them in light of
this issue.
IV.
The district court dismissed the plaintiffs’ claim against Rosemore
and Henry Rosenberg, Jr. as controlling persons under Section 20(a)
of the Act. The court held that because the plaintiffs failed to state a
claim for primary violations of the Act under Section 14(a), the plain-
tiffs necessarily failed to state a claim under Section 20(a). If, on
remand, the district court determines that the plaintiffs have stated a
Section 14(a) claim, the Section 20(a) claim, of course, should be
reconsidered.
V.
Last, we turn to the Maryland state law claims. The plaintiffs allege
a breach of fiduciary duty against Crown’s directors and Rosemore
appears to have considered it significant that the plaintiffs expressly
excluded allegations of fraud, presumably because scienter, or an intent
to deceive, is a necessary element of securities fraud. We note, however,
that the Supreme Court has not determined whether it is necessary to
demonstrate scienter to satisfy the "knowing" element of a Section 14(a)
claim. See Virginia Bankshares, 501 U.S. at 1091, n.5.
12 HAYES v. CROWN CENTRAL PETROLEUM CORP.
because they knew or should have known that the merger was not in
the best interests of the public shareholders of Crown. The plaintiffs
also assert a claim against CSFB for aiding and abetting the alleged
breach of fiduciary duty by the directors. The plaintiffs specifically
excluded, however, allegations of fraudulent conduct.
Under Maryland law, directors owe fiduciary duties to a corpora-
tion’s shareholders. Toner v. Baltimore Envelope Co., 498 A.2d 642,
648 (1985). A corporation’s charter may limit the liability of directors
for money damages except to the extent that (1) the directors received
an improper benefit or (2) engaged in active and deliberate dishon-
esty. Md. Code Ann., Cts. & Jud. Proc. § 5-418. Because Crown’s
charter specifically limits the liability of its directors for money dam-
ages as provided by law, the plaintiffs must allege an improper benefit
or active and deliberate dishonesty in order to state a claim.
We conclude that the plaintiffs have not alleged facts necessary to
survive a motion to dismiss their claim against the directors. The
complaint does not allege that the directors received improper bene-
fits. As to active or deliberate dishonesty, the plaintiffs cannot prevail
because the pleadings specifically exclude allegations of fraud.
Accordingly, the district court properly granted the motion to dismiss
the claim against the directors for breach of fiduciary duty.2
The plaintiffs also allege that Rosemore owed a fiduciary duty to
the minority shareholders and breached that duty by purchasing
Crown at an unfair price. Maryland law provides that in certain cir-
cumstances, majority shareholders owe fiduciary duties to minority
shareholders. See Toner, 498 A.2d at 647-648. The plaintiffs argue
that Rosemore, although a minority shareholder, should be considered
a majority shareholder because the combined shares of Rosemore and
Novelly constituted a majority of votes eligible to be cast. We
decline, however, to recharacterize a minority shareholder as a major-
ity shareholder. Furthermore, Novelly was not a named defendant in
this action. The plaintiffs, therefore, have failed to state a claim
against Rosemore for breach of fiduciary duty.
2
Because the plaintiffs have failed to state a claim against the directors,
the plaintiffs’ claim against CSFB for aiding and abetting the alleged
breaches of fiduciary duty must also fail.
HAYES v. CROWN CENTRAL PETROLEUM CORP. 13
VI.
Accordingly, we vacate the judgment of the district court in part
and remand the Section 14(a) and Section 20(a) claims for consider-
ation of the defendants’ use of EBITDA in the selected companies
analysis. We affirm the judgment of the district court as to all other
alleged misrepresentations of material fact, and we affirm the dis-
missal of the state law claims.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED