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April 16, 2014

District Court Finds that Securities Exchange Act Covers Stock "Float" Manipulation

In a self-described “precedent-setting” order, the US District Court for the Eastern District of Pennsylvania recently found that the Securities Exchange Act of 1934 (Exchange Act) can apply to a scheme aimed at gaining control over a corporation’s stock “float.” The District Court, considering a motion to dismiss a defendant’s amended counterclaims and third-party claims, was presented with the unique question of whether a violation of Section 10(b) and Rule 10b(5) can be committed by officers of a corporation, not by their misrepresentations to investors in connection with the sale of a corporation’s shares (as is usually alleged), but by the officers’ alleged scheme to manipulate the restricted nature of a company’s shares in order to gain control over the stock’s float and enrich themselves to the detriment of the corporation. The District Court found that the Exchange Act could cover such allegations, and reasoned that the US Supreme Court’s broad holdings enforcing Section 10(b) and Rule 10b(5) extended to a corporate officer’s scheme to manipulate the stock’s float, artificially inflate its share price through fraud on the market and reap substantial gains by selling off his shares while causing the corporation and its other shareholders to suffer loss. As such, the District Court denied the motion to dismiss defendants’ counterclaims, and held that, while this was a novel situation, it could not conclude on a Rule 12 motion that it would be legally impossible for defendants to satisfy a jury that the alleged scheme described in their counterclaims entitles them to relief.

Advanced Multilevel Concepts, Inc. et al. v. Edward Bukstel et al., Civil Action No. 11-3718 (E.D. Pa. Jan. 25, 2013).

©2014 Katten Muchin Rosenman LLP

About the Author

Michael S. Gordon, Katten Muchin Law Firm, Litigation Attorney
Partner

Michael S. Gordon has a broad range of commercial litigation experience, and regularly represents clients in state and federal courts, as well as in arbitration and mediation proceedings, in New York, New Jersey and throughout the United States. Mr. Gordon has substantial experience in real estate and secured lending litigation, representing developers, management and hospitality companies, banks and private equity funds. Mr. Gordon also has extensive experience handling all types of business disputes including breach of contract, business torts, partnership and corporate shareholder...

212-940-6666

About the Author

Elizabeth D. Langdale, Litigation Attorney, Katten Muchin Law Firm
Associate

Elizabeth D. Langdale concentrates her practice in litigation and dispute resolution matters.

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