Pinter v. DahlAnnotate this Case
486 U.S. 622 (1988)
U.S. Supreme Court
Pinter v. Dahl, 486 U.S. 622 (1988)
Pinter v. Dahl
Argued December 9, 1987
Decided June 15, 1988
486 U.S. 622
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
Petitioner Pinter, an oil and gas producer and registered securities dealer, sold unregistered securities consisting of fractional undivided interests in oil and gas leases to respondent Dahl, a real estate broker and investor who was experienced in oil and gas ventures. Dahl touted the venture to the other respondents -- his friends, family, and business associates -- and assisted them in completing subscription agreement forms prepared by Pinter, but received no commission from Pinter when each of them invested in unregistered interests on the basis of Dahl's involvement. When the venture failed, respondents sued Pinter in Federal District Court, seeking rescission under § 12(1) of the Securities Act of 1933 (Act) for the unlawful sale of unregistered securities. After a bench trial, the court granted judgment for respondents, apparently rejecting Pinter's common law in pari delicto defense to Dahl's suit. The Court of Appeals affirmed, ruling that such defense was not available because § 12(1) creates a "strict liability offense," rather than liability based on intentional conduct, and distinguishing Bateman Eichler, Hill Richards, Inc. v. Berner,472 U. S. 299, which held that the defense applies in actions under § 10(b) of the Securities Exchange Act of 1934, on the ground that § 10(b) contains an element of scienter. The court also held that Dahl was not a "seller" within the meaning of § 12(1), and therefore could not be held liable in contribution for the other respondents' claims against Pinter, since, although Dahl's conduct was a "substantial factor" in causing the other respondents' purchases, there was no evidence that he had sought or received financial benefit for himself or anyone other than the other respondents.
1. The in pari delicto defense is available in a § 12(1) private rescission action. Pp. 486 U. S. 632-641.
(a) Bateman Eichler is not limited to § 10(b) claims, to cases involving willful or negligent misconduct, or to implied, as opposed to express, private causes of action. Rather, the decision provides the appropriate test for allowance of the in pari delicto defense in a private action under any of the federal securities laws, including a § 12(1) rescission suit. Pp. 486 U. S. 633-635.
(b) The first prong of the Bateman Eichler test is satisfied in the § 12(1) context if the plaintiff is at least equally responsible for the issuer's illegal failure to register the securities or to conduct the sale in a manner that satisfies the Act's registration exemption provisions. A purchaser's knowledge that the securities are unregistered cannot, by itself, constitute equal culpability, even where he is a sophisticated buyer who may not necessarily need the Act's protection. Rather, the relative responsibility assessment turns upon the facts of each case. The second prong of the Bateman Eichler test is satisfied in the § 12(1) context where the plaintiff's role is primarily as a promoter, rather than as an investor. The determination depends on a host of readily accessible factors, including, but not limited to, the extent of the plaintiff's financial involvement compared to that of the third parties he solicited, the incidental nature of his promotional activities, the benefits he received for those activities, and the extent of his involvement in the offering's planning stages. Pp. 486 U. S. 635-639.
(c) The District Court's findings are inadequate to determine whether Dahl may be subjected to Pinter's in pari delicto defense under the Bateman Eichler test, as it applies to § 12(1) actions. Pp. 486 U. S. 639-641.
2. A nonowner of securities must solicit the purchase, motivated at least in part by a desire to serve his own financial interests or those of the securities owner, in order to qualify as a "seller" within the meaning of § 12(1), which provides that "[a]ny person who . . . offers or sells a security" in violation of the Act's registration requirement "shall be liable to the person purchasing such security from him." Pp. 486 U. S. 641-655.
(a) Section 12(1)'s language and history, as well as the statutory purpose of protecting investors, demonstrate that "seller" is not limited to an owner who passes title, or other interest in a security, to the buyer for value, but extends to a broker or other person who successfully solicits a purchase of securities, so long as he is motivated at least in part by a desire to serve his own financial interests or those of the securities owner. It strains the meaning of § 2(3) of the Act, which defines "offer" for § 12(1)'s purposes as including every "solicitation of an offer to buy . . . for value," to say that a person who gratuitously urges another, even strongly or enthusiastically, to make a securities purchase solely for the buyer's benefit is "soliciting" or is requesting value in exchange for his suggestion or seeking the value the titleholder will obtain in exchange for the ultimate sale. Only if the soliciting person is motivated by such a financial interest can it be fairly said that the buyer "purchased" the security from him, such that he can be aligned with the owner in a rescission action. Pp. 486 U. S. 642-647.
(b) The language, history, and statutory context of § 12(1) demonstrate that the "substantial factor" test, whereby a nontransferor seller
is defined as one whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place, is not an appropriate standard for assessing § 12(1) liability as a statutory seller. Without affording guidelines for determining when the defendant's conduct is sufficiently integral to the sale, the test would expand primary § 12(1) liability beyond persons who pass title and those who "offer" or "solicit" offers for financial gain to persons who merely participate in unlawful sales transactions but are only remotely related to the relevant aspects of the transactions, including accountants and lawyers simply performing their professional services. Such persons do not even arguably fit within the definitions set out in § 2(3). Congress did not intend such a gross departure from the statutory language. Pp. 486 U. S. 648-654.
(c) The record is insufficient to determine whether Dahl may be liable as a statutory "seller" under § 12(1). The District Court's finding that Dahl solicited the other respondents' purchases is not clearly erroneous. However, the Court of Appeals' apparent conclusion that Dahl was motivated entirely by a gratuitous desire to share an attractive investment opportunity with his friends and associates was premature, since the District Court made no findings that focused on whether he urged the other respondents' purchases in order to further some financial interest of his own or of Pinter. Pp. 486 U. S. 654-655.
787 F.2d 985, vacated and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 486 U. S. 655. KENNEDY, J., took no part in the consideration or decision of the case.
JUSTICE BLACKMUN delivered the opinion of the Court.
The questions presented by this case are (a) whether the common law in pari delicto defense is available in a private
action brought under § 12(1) of the Securities Act of 1933 (Securities Act), 48 Stat. 74, as amended, 15 U.S.C. § 77a et seq., for the rescission of the sale of unregistered securities, and (b) whether one must intend to confer a benefit on himself or on a third party in order to qualify as a "seller" within the meaning of § 12(1).
The controversy arises out of the sale prior to 1982 of unregistered securities (fractional undivided interests in oil and gas leases) by petitioner Billy J. "B. J." Pinter to respondents Maurice Dahl and Dahl's friends, family, and business associates. [Footnote 1] Pinter is an oil and gas producer in Texas and Oklahoma, and a registered securities dealer in Texas. Dahl is a California real estate broker and investor, who, at the time of his dealings with Pinter, was a veteran of two unsuccessful oil and gas ventures. In pursuit of further investment opportunities, Dahl employed an oil field expert to locate and acquire oil and gas leases. This expert introduced Dahl to Pinter. Dahl advanced $20,000 to Pinter to acquire leases, with the understanding that they would be held in the name of Pinter's Black Gold Oil Company and that Dahl would have a right of first refusal to drill certain wells on the leasehold properties. Pinter located leases in Oklahoma, and Dahl toured the properties, often without Pinter, in order to talk to others and "get a feel for the properties." App. to Pet.
for Cert. 32. Upon examining the geology, drilling logs, and production history assembled by Pinter, Dahl concluded, in the words of the District Court, that "there was no way to lose." Ibid.
After investing approximately $310,000 in the properties, Dahl told the other respondents about the venture. Except for Dahl and respondent Grantham, none of the respondents spoke to or met Pinter or toured the properties. Because of Dahl's involvement in the venture, each of the other respondents decided to invest about $7,500. [Footnote 2]
Dahl assisted his fellow investors in completing the subscription agreement form prepared by Pinter. Each letter contract signed by the purchaser stated that the participating interests were being sold without the benefit of registration under the Securities Act, in reliance on Securities and Exchange Commission (SEC or Commission) Rule 146, 17 CFR § 230.146 (1982). [Footnote 3] In fact, the oil and gas interests involved in this suit were never registered with the Commission. Respondents' investment checks were made payable to Black Gold Oil Company. Dahl received no commission from Pinter in connection with the other respondents' purchases.
When the venture failed and their interests proved to be worthless, respondents brought suit against Pinter in the United States District Court for the Northern District of Texas, seeking rescission under § 12(1) of the Securities Act, 15 U.S.C. § 771(1), for the unlawful sale of unregistered securities. [Footnote 4]
In a counterclaim, Pinter alleged that Dahl, by means of fraudulent misrepresentations and concealment of facts, induced Pinter to sell and deliver the securities. Pinter averred that Dahl falsely assured Pinter that he would provide other qualified, sophisticated, and knowledgeable investors with all the information necessary for evaluation of the investment. Dahl allegedly agreed to raise the funds for the venture from those investors, with the understanding that Pinter would simply be the "operator" of the wells. App. 69-73. [Footnote 5] Pinter also asserted, on the basis of the same factual allegations, that Dahl's suit was barred by the equitable defenses of estoppel and in pari delicto. Id. at 66-67. [Footnote 6]
The District Court, after a bench trial, granted judgment for respondent investors. Id. at 92. The court concluded that Pinter had not proved that the oil and gas interests were entitled to the private offering exemption from registration. App. to Pet. for Cert. a-37. Accordingly, the court ruled
that, because the securities were unregistered, respondents were entitled to rescission pursuant to § 12(1). Ibid. [Footnote 7] The court also concluded that the evidence was insufficient to sustain Pinter's counterclaim against Dahl. The District Court made no mention of the equitable defenses asserted by Pinter, but it apparently rejected them.
A divided panel of the Court of Appeals for the Fifth Circuit affirmed. 787 F.2d 985 (1986). The court first held that Dahl's involvement in the sales to the other respondents did not give Pinter an in pari delicto defense to Dahl's recovery. Id. at 988. [Footnote 8] The court concluded that the defense is not available in an action under § 12(1), because that section creates "a strict liability offense," rather than liability based on intentional misconduct. It thereby distinguished our recent decision in Bateman Eichler, Hill Richards, Inc. v. Berner,472 U. S. 299 (1985), where we held that the in pari delicto defense is applicable in an action under § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b), which contains an element of scienter. Noting that Dahl was "as culpable' as Pinter in the sense that his conduct was an equal producing cause of the illegal transaction," the court nevertheless held that, "[a]bsent a showing that Dahl's conduct was `offensive to the dictates of natural justice,'" the in pari delicto defense was not available. 787 F.2d at 988, quoting Keystone Driller Co. v. General Excavator Co.,290 U. S. 240, 290 U. S. 245 (1933).
The Court of Appeals next considered whether Dahl was himself a "seller" of the oil and gas interests within the meaning of § 12(1), for if he was, the court assumed, he could be held liable in contribution for the other plaintiffs' claims
against Pinter. [Footnote 9] 787 F.2d at 990, and n. 8. Citing Fifth Circuit precedent, the court described a statutory seller as
"(1) one who parts with title to securities in exchange for consideration or (2) one whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place."
Id. at 990. While acknowledging that Dahl's conduct was a "substantial factor" in causing the other plaintiffs to purchase securities from Pinter, the court declined to hold that Dahl was a "seller" for purposes of § 12(1). Instead, the court went on to refine its test to include a threshold requirement that one who acts as a "promoter" be "motivated by a desire to confer a direct or indirect benefit on someone other than the person he has advised to purchase." 787 F.2d at 991. The court reasoned that
"a rule imposing liability (without fault or knowledge) on friends and family members who give one another gratuitous advice on investment matters unreasonably interferes with well established patterns
of social discourse."
Ibid. Accordingly, since the court found no evidence that Dahl sought or received any financial benefit in return for his advice, it declined to impose liability on Dahl for "mere gregariousness." Ibid.
The dissenting judge took issue with the majority's analysis on both points. First, assuming that this Court's decision in Bateman Eichler applied to all securities cases, the dissent concluded that Dahl's suit should be barred by the in pari delicto doctrine because Dahl was a "catalyst" for the entire transaction and knew that the securities were unregistered. 787 F.2d at 991. In addition, the dissent maintained that Dahl's conduct transformed him into a "seller" of unregistered securities to the other plaintiffs under the Fifth Circuit's established "substantial factor" test. Id. at 991-992. It added that, even under the majority's expectation-of-financial-benefit refinement, Dahl's promotional activities rendered him a "seller" because "[m]ore investors means that the investment program receives the requisite amount of financing, at a smaller risk to each investor." Id. at 992, n. 3. [Footnote 10]
The Court of Appeals, by an 8-6 vote, denied rehearing en banc. 794 F.2d 1016 (1986). The judges who dissented from that denial asserted that the panel majority's addition of the financial-benefit requirement to the definition of a "seller," "has absolutely no foundation in either settled securities law or its underlying policies." Id. at 1017. They also criticized the panel majority for misinterpreting Bateman Eichler to limit application of the in pari delicto doctrine to fraud actions under § 10(b). 794 F.2d at 1017.
Because of the importance of the issues involved to the administration of the federal securities law, we granted certiorari. 481 U.S. 1012 (1987).
The equitable defense of in pari delicto, which literally means "in equal fault," is rooted in the common law notion that a plaintiff's recovery may be barred by his own wrongful conduct. See Bateman Eichler, 472 U.S. at 472 U. S. 306, and nn. 12 and 13. Traditionally, the defense was limited to situations where the plaintiff bore "at least substantially equal responsibility for his injury," id. at 472 U. S. 307, and where the parties' culpability arose out of the same illegal act. 1 J. Story, Equity Jurisprudence 399-400 (14th ed.1918). Contemporary courts have expanded the defense's application to situations more closely analogous to those encompassed by the "unclean hands" doctrine, where the plaintiff has participated "in some of the same sort of wrongdoing" as the defendant. See Perma Life Mufflers, Inc. v. International Parts Corp.,392 U. S. 134, 392 U. S. 138 (1968). In Perma Life, however, the Court concluded that this broadened construction is not appropriate in litigation arising under federal regulatory statutes. Ibid. Nevertheless, in separate opinions, five Justices recognized that a narrow, more traditional formulation should be available in private actions under the antitrust laws. See id. at 392 U. S. 145 (WHITE, J., concurring); id. at 392 U. S. 147-148 (Fortas, J., concurring in result); id. at 392 U. S. 148-149, 151 (MARSHALL, J., concurring in result); id. at 392 U. S. 154-155 (Harlan, J., joined by Stewart, J., concurring in part and dissenting in part).
In Bateman Eichler, the Court addressed the scope of the in pari delicto defense in the context of an action brought by securities investors under the antifraud provisions of § 10(b) and Rule 10b-5, alleging that the broker-dealer and corporate insider defendants had induced the plaintiffs to purchase large quantities of stock by divulging false and materially incomplete information on the pretext that it was accurate
inside information. The defendants argued that the scope should be broader where the private cause of action is implied, as in a § 10(b) action, rather than expressly provided by Congress, as in an antitrust action. The Court rejected this distinction, concluding that "the views expressed in Perma Life apply with full force to implied causes of action under the federal securities laws." 472 U.S. at 472 U. S. 310. Accordingly, it held that the in pari delicto defense is available
"only where (1) as a direct result of his own actions, the plaintiff bears at least substantially equal responsibility for the violations he seeks to redress, and (2) preclusion of suit would not significantly interfere with the effective enforcement of the securities laws and protection of the investing public."
Id. at 472 U. S. 310-311. The first prong of this test captures the essential elements of the classic in pari delicto doctrine. See id. at 472 U. S. 307. The second prong, which embodies the doctrine's traditional requirement that public policy implications be carefully considered before the defense is allowed, see ibid., ensures that the broad judge-made law does not undermine the congressional policy favoring private suits as an important mode of enforcing federal securities statutes. Cf. Perma Life, 392 U.S. at 392 U. S. 139-140. Applying this test to the § 10(b) claim before it, the Court concluded that, in such tipster-tippee situations, the two factors precluded recognition of the in pari delicto defense. Bateman Eichler, 472 U.S. at 472 U. S. 317.
We do not share the Court of Appeals' narrow vision of the applicability of Bateman Eichler. Nothing in this Court's opinion in that case suggests that the in pari delicto defense is limited to § 10(b) claims. Nor does the opinion suggest that the doctrine applies only when the plaintiff's fault is intentional or willful.
We feel that the Court of Appeals' notion that the in pari delicto defense should not be allowed in actions involving
strict liability offenses is without support in history or logic. [Footnote 11] The doctrine traditionally has been applied in any action based on conduct that "transgresses statutory prohibitions." 2 Restatement of Contracts § 598, Comment a (1932). Courts have recognized the defense in cases involving strict liability offenses. See, e.g., UFITEC, S.A. v. Carter, 20 Cal.3d 238, 250, 571 P.2d 990, 996-997 (1977) (violation of Federal Reserve margin requirements); Miller v. California Roofing Co., 55 Cal.App.2d 136, 130 P.2d 740 (1942) (sale of stock without permit from State Corporation Commission). One of the premises on which the in pari delicto doctrine is grounded is that "denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality." Bateman Eichler, 472 U.S. at 472 U. S. 306. The need to deter illegal conduct is not eliminated simply because a statute creates a strict liability offense, rather than punishing willful or negligent misconduct. Regardless of the degree of scienter, there may be circumstances in which the statutory goal of deterring illegal conduct is served more effectively by preclusion of suit than by recovery. In those circumstances, the in pari delicto defense should be afforded. Cf. A. C. Frost & Co. v. Coeur D'Alene Mines Corp.,312 U. S. 38, 312 U. S. 43-44, and n. 2 (1941).
In Bateman Eichler, the Court granted certiorari to resolve a conflict of authority "over the proper scope of the in pari delicto defense in securities litigation." 472 U.S. at 472 U. S. 305. The Court formulated the standards under which the defense should be recognized in language applicable generally to federal securities litigation. The formulation was articulated in the specific context of deciding when
"a private action for damages [in implied causes of action under the federal
securities laws] may be barred on the grounds of the plaintiff's own culpability."
Id. at 472 U. S. 310. Nevertheless, the Court's rejection of the distinction between implied and express private causes of action, especially when considered in light of the broad question on which the Court granted certiorari, makes clear that the Court assumed that the in pari delicto defense should be equally available when Congress expressly provides for private remedies. Thus, we conclude that Bateman Eichler provides the appropriate test for allowance of the in pari delicto defense in a private action under any of the federal securities laws.
Our task, then, is to determine whether, pursuant to this test, recognition of the defense is proper in a suit for rescission brought under § 12(1) of the Securities Act. All parties in this case, as well as the Commission, maintain that the defense should be available. [Footnote 12] We agree, but find it necessary to circumscribe the scope of its application.
Under the first prong of the Bateman Eichler test, as we have noted above, a defendant cannot escape liability unless, as a direct result of the plaintiff's own actions, the plaintiff bears at least substantially equal responsibility for the underlying
illegality. The plaintiff must be an active, voluntary participant in the unlawful activity that is the subject of the suit. See Woolf v. S.D. Cohn & Co., 515 F.2d 591, 604 (CA5 1975), vacated and remanded on other grounds, 426 U.S. 944 (1976); see also Bateman Eichler, 472 U.S. at 472 U. S. 312. "Plaintiffs who are truly in pari delicto are those who have themselves violated the law in cooperation with the defendant." Perma Life, 392 U.S. at 392 U. S. 153 (Harlan, J., concurring in part and dissenting in part). Unless the degrees of fault are essentially indistinguishable or the plaintiff's responsibility is clearly greater, the in pari delicto defense should not be allowed, and the plaintiff should be compensated. See id. at 392 U. S. 146 (WHITE, J., concurring); id. at 392 U. S. 147 (Fortas, J., concurring in result); id. at 392 U. S. 149 (MARSHALL, J., concurring in result); Bateman Eichler, 472 U.S. at 472 U. S. 312-314. Refusal of relief to those less blameworthy would frustrate the purpose of the securities laws; it would not serve to discourage the actions of those most responsible for organizing forbidden schemes; and it would sacrifice protection of the general investing public in pursuit of individual punishment. See CanAm Petroleum Co. v. Beck, 331 F.2d 371, 373 (CA10 1964).
In the context of a private action under § 12(1), the first prong of the Bateman Eichler test is satisfied if the plaintiff is at least equally responsible for the actions that render the sale of the unregistered securities illegal -- the issuer's failure to register the securities before offering them for sale, or his failure to conduct the sale in such a manner as to meet the registration exemption provisions. As the parties and the Commission agree, a purchaser's knowledge that the securities are unregistered cannot, by itself, constitute equal culpability, even where the investor is a sophisticated buyer who may not necessarily need the protection of the Securities Act. Barring the investor's recovery under the in pari delicto doctrine,
"at least on the basis solely of the buyer's knowledge of the violation, is so foreign to the purpose of the section that there is hardly a trace of it in the decisions under
. . . § 12(1)."
3 L. Loss, Securities Regulation 1694 (2d ed.1961). [Footnote 13] Although a court's assessment of the relative responsibility of the plaintiff will necessarily vary depending on the facts of the particular case, courts frequently have focused on the extent to which the plaintiff and the defendant cooperated in developing and carrying out the scheme to distribute unregistered securities. See, e.g., Katz v. Amos Treat & Co., 411 F.2d 1046, 1054 (CA2 1969); Lawler v. Gilliam, 569 F.2d 1283, 1292-1293 (CA4 19783); Malamphy v. Real-Tex Enterprises, Inc., 527 F.2d 978 (CA4 1975). In addition, if the plaintiff were found to have induced the issuer not to register, he well might be precluded from obtaining § 12(1) rescission.
Under the second prong of the Bateman Eichler test, a plaintiff's recovery may be barred only if preclusion of suit
does not offend the underlying statutory policies. The primary purpose of the Securities Act is to protect investors by requiring publication of material information thought necessary to allow them to make informed investment decisions concerning public offerings of securities in interstate commerce. SEC v. Ralston Purina Co.,346 U. S. 119, 346 U. S. 124 (1953); A. C. Frost & Co. v. Coeur D'Alene Mines Corp., 312 U.S. at 312 U. S. 43, and n. 2. See H.R.Rep. No. 85, 73d Cong., 1st Sess., 1-5 (1933). [Footnote 14] The registration requirements are the heart of the Act, and § 12(1) imposes strict liability for violating those requirements. Liability under § 12(1) is a particularly important enforcement tool, because in many instances a private suit is the only effective means of detecting and deterring a seller's wrongful failure to register securities before offering them for sale. Lawler v. Gilliam, 569 F.2d at 1293, citing Woolf v. S.D. Cohn & Co., 515 F.2d at 605. See also Bateman Eichler, 472 U.S. at 472 U. S. 310.
In our view, where the § 12(1) plaintiff is primarily an investor, precluding suit would interfere significantly with effective enforcement of the securities laws and frustrate the primary objective of the Securities Act. The Commission, too, takes this position. Because the Act is specifically designed to protect investors, even where a plaintiff actively participates in the distribution of unregistered securities, his
suit should not be barred where his promotional efforts are incidental to his role as an investor. See Can-Am Petroleum Co. v. Beck, 331 F.2d at 373-374 (plaintiff's "relationship as a pure investor became adulterated when she actively assisted in selling others but she at no time had the degree of culpability attributed to defendants and should not be considered as in pari delicto"). Cf. Athas v. Day, 186 F.Supp. 385, 389 (Colo.1960) (barring recovery to plaintiff who participated extensively as promoter of unlawful securities distribution). Thus, the in pari delicto defense may defeat recovery in a § 12(1) action only where the plaintiff's role in the offering or sale of nonexempted, unregistered securities is more as a promoter than as an investor.
Whether the plaintiff in a particular case is primarily an investor or primarily a promoter depends upon a host of factors, all readily accessible to trial courts. These factors include the extent of the plaintiff's financial involvement compared to that of third parties solicited by the plaintiff, compare Can-Am Petroleum Co. v. Beck, supra, with Athas v. Day, supra; the incidental nature of the plaintiff's promotional activities, see Malamphy v. Real-Tex Enterprises, Inc., 527 F.2d at 980; the benefits received by the plaintiff from his promotional activities; and the extent of the plaintiff's involvement in the planning stages of the offering (such as whether the plaintiff has arranged an underwriting or prepared the offering materials). We do not mean to suggest that these factors provide conclusive evidence of culpable promotional activity, or that they constitute an exhaustive list of factors to be considered. The courts are free, in the exercise of their sound discretion, to consider whatever facts are relevant to the inquiry.
Given the record in this case, we cannot ascertain whether Pinter may successfully assert an in pari delicto defense
against Dahl's § 12(1) claim. [Footnote 15] The District Court's findings in this case are not adequate to determine whether Dahl bears at least substantially equal responsibility for the failure to register the oil and gas interests or to distribute the securities in a manner that conformed with the statutory exemption, and whether he was primarily a promoter of the offering. [Footnote 16] The findings indicate, on the one hand, that Dahl may have participated in initiating the entire investment, and that he loaned money to Pinter and solicited his associates' participation in the venture, but, on the other hand, that Dahl invested substantially more money than the other investor-respondents, expected and received no commission
for his endeavors, and drafted none of the offering documents. Furthermore, the District Court made no findings as to who was responsible for the failure to register or for the manner in which the offering was conducted. Those findings will be made on the remand of this case for further proceedings.
What we have said as to the availability to Pinter of the in pari delicto defense against Dahl's § 12(1) action does not obviate the need to consider the second question presented by petitioner. [Footnote 17] We turn now to that issue.
In determining whether Dahl may be deemed a "seller" for purposes of § 12(1), such that he may be held liable for the sale of unregistered securities to the other investor-respondents, we look first at the language of § 12(1). See Ernst & Ernst v. Hochfelder,425 U. S. 185, 425 U. S. 197 (1976). That statute provides, in pertinent part: "Any person who . . . offers or sells a security" in violation of the registration requirement of the Securities Act "shall be liable to the person purchasing such security from him." 15 U.S.C. § 771. This provision defines the class of defendants who may be subject to liability [Footnote 18] as those who offer or sell unregistered
securities. [Footnote 19] But the Securities Act nowhere delineates who may be regarded as a statutory seller, and the sparse legislative history sheds no light on the issue. The courts, on their part, have not defined the term uniformly.
At the very least, however, the language of § 12(1) contemplates a buyer-seller relationship not unlike traditional contractual privity. Thus, it is settled that § 12(1) imposes liability on the owner who passed title, or other interest in the security, to the buyer for value. See Loss, at 1016. Dahl, of course, was not a seller in this conventional sense, and therefore may be held liable only if § 12(1) liability extends to persons other than the person who passes title. [Footnote 20]
In common parlance, a person may offer or sell property without necessarily being the person who transfers title to,
or other interest in, that property. We need not rely entirely on ordinary understanding of the statutory language, however, for the Securities Act defines the operative terms of § 12(1). Section 2(3) defines "sale" or "sell" to include "every contract of sale or disposition of a security or interest in a security, for value," and the terms "offer to sell," "offer for sale," or "offer" to include "every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value." 15 U.S.C. § 77b(3). Under these definitions, the range of persons potentially liable under § 12(1) is not limited to persons who pass title. The inclusion of the phrase "solicitation of an offer to buy" within the definition of "offer" brings an individual who engages in solicitation, an activity not inherently confined to the actual owner, within the scope of § 12. See Loss, at 1016; Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L.J. 171, 206-207 (1933). Indeed, the Court has made clear, in the context of interpreting § 17(a) of the Securities Act, 15 U.S.C. § 77q(a), that transactions other than traditional sales of securities are within the scope of § 2(3), and passage of title is not important. See United States v. Naftalin,441 U. S. 768, 441 U. S. 773 (1979). We there explained:
"The statutory terms ['offer' and 'sell'], which Congress expressly intended to define broadly, . . . are expansive enough to encompass the entire selling process, including the seller/agent transaction."
Ibid.See also Rubin v. United States,449 U. S. 424, 449 U. S. 430 (1981) ("It is not essential under the terms of the Act that full title pass to a transferee for the transaction to be an offer' or a `sale'").
Determining that the activity in question falls within the definition of "offer" or "sell" in § 2(3), however, is only half of the analysis. The second clause of § 12(1), which provides that only a defendant "from" whom the plaintiff "purchased" securities may be liable, narrows the field of potential sellers. [Footnote 21]
Several courts and commentators have stated that the purchase requirement necessarily restricts § 12 primary liability to the owner of the security . E.g., Beck v. Cantor, Fitzgerald & Co., 621 F.Supp. 1547, 1560-1561 (ND Ill.1985); Abrams, The Scope of Liability Under Section 12 of the Securities Act of 1933: "Participation" and the Pertinent Legislative Materials, 15 Ford.Urban L.J. 877 (1987); see also Collins v. Signetics Corp., 605 F.2d 110, 113 (CA3 1979) (absent some "special relationship" -- e.g., control -- § 12 requires privity between statutory seller and buyer). In effect, these authorities interpret the term "purchase" as complementary to only the term "sell" defined in § 2(3). Thus, an offeror, as defined by § 2(3), may incur § 12 liability only if the offeror also "sells" the security to the plaintiff, in the sense of transferring title for value. Abrams, 15 Ford. Urban L.J. at 922-923.
We do not read § 12(1) so restrictively. The purchase requirement clearly confines § 12 liability to those situations in which a sale has taken place. Thus, a prospective buyer has no recourse against a person who touts unregistered securities to him if he does not purchase the securities. Loss, at 884. The requirement, however, does not exclude solicitation from the category of activities that may render a person liable when a sale has taken place. A natural reading of the statutory language would include in the statutory seller status at least some persons who urged the buyer to purchase. For example, a securities vendor's agent who solicited the purchase would commonly be said, and would be thought by the buyer, to be among those "from" whom the buyer "purchased," even though the agent himself did not pass title. See Cady v. Murphy, 113 F.2d 988, 990 (CA1) (finding broker
acting as agent of the owner liable as a statutory seller), cert. denied, 311 U.S. 705 (1940).
The Securities Act does not define the term "purchase." The soundest interpretation of the term, however, is as a correlative to both "sell" and "offer," at least to the extent that the latter entails active solicitation of an offer to buy. This interpretation is supported by the history of the phrase "offers or sells," as it is used in § 12(1). As enacted in 1933, § 12(1) imposed liability on "[a]ny person who . . . sells a security." 48 Stat. 84. The statutory definition of "sell" included "offer," and the activities now encompassed by that term, including solicitation. Id. at 74. The words "offer or" were added to § 12(1) by the 1954 amendments to the Securities Act, when the original definition of "sell" in § 2(3) was split into separate definitions of "sell" and "offer" in order to accommodate changes in § 5. 68 Stat. 683, 686. Since "sells" and "purchases" have obvious correlative meanings, Congress' express definition of "sells" in the original Securities Act to include solicitation suggests that the class of those from whom the buyer "purchases" extended to persons who solicit him. The 1954 amendment to § 12(1) was intended to preserve existing law, including the liability provisions of the Act. H.R.Rep. No. 1542, 83d Cong., 2d Sess., 26 (1954); S.Rep. No. 1036, 83d Cong., 2d Sess., 18 (1954); Loss, at 884. Hence, there is no reason to think Congress intended to narrow the meaning of "purchased from" when it amended the statute to include "solicitation" in the statutory definition of "offer" alone. [Footnote 22]
The applicability of § 12 liability to brokers and others who solicit securities purchases has been recognized frequently since the passage of the Securities Act. It long has been "quite clear" that, when a broker acting as agent of one of the principals to the transaction successfully solicits a purchase, he is a person from whom the buyer purchases within the meaning of § 12, and is therefore liable as a statutory seller. See Loss, at 1016. Indeed, courts had found liability on this basis prior to the 1954 amendment of the statute. See, e.g., Wall v. Wagner, 125 F.Supp. 854, 858 (Neb.1954), aff'd sub nom. Whittaker v. Wall, 226 F.2d 868, 873 (CA8 1955) (principal and its agents); Schillner v. H. Vaughan Clarke & Co., 134 F.2d 875, 879 (CA2 1943) (seller's broker); Cady v. Murphy, supra, (seller's broker); Boehm v. Granger, 42 N.Y. S.2d 246, 248 (Sup.1943), aff'd, 268 App.Div. 855, 50 N.Y.S.2d 845 (1944) (buyer's broker). Had Congress intended liability to be restricted to those who pass title, it could have effectuated its intent by not adding the phrase "offers or" when it split the definition of "sell" in § 2(3).
An interpretation of statutory seller that includes brokers and others who solicit offers to purchase securities furthers the purposes of the Securities Act -- to promote full and fair disclosure of information to the public in the sales of securities. In order to effectuate Congress' intent that § 12(1) civil liability be in terrorem, see Douglas & Bates, 43 Yale L.J. at 173; Shulman, 43 Yale L.J. at 227, the risk of its invocation should be felt by solicitors of purchases. The solicitation of a buyer is perhaps the most critical stage of the selling transaction. It is the first stage of a traditional securities sale to involve the buyer, and it is directed at producing the sale. In addition, brokers and other solicitors are well positioned to control the flow of information to a potential purchaser, and, in fact, such persons are the participants in the selling transaction who most often disseminate material information to investors. Thus, solicitation is the stage at which an investor is most likely to be injured, that is, by
being persuaded to purchase securities without full and fair information. Given Congress' overriding goal of preventing this injury, we may infer that Congress intended solicitation to fall under the mantle of § 12(1).
Although we conclude that Congress intended § 12(1) liability to extend to those who solicit securities purchases, we share the Court of Appeals' conclusion that Congress did not intend to impose rescission based on strict liability on a person who urges the purchase, but whose motivation is solely to benefit the buyer. When a person who urges another to make a securities purchase acts merely to assist the buyer, not only is it uncommon to say that the buyer "purchased" from him, but it is also strained to describe the giving of gratuitous advice, even strongly or enthusiastically, as "soliciting." Section 2(3) defines an offer as a "solicitation of an offer to buy . . . for value." The person who gratuitously urges another to make a particular investment decision is not, in any meaningful sense, requesting value in exchange for his suggestion or seeking the value the titleholder will obtain in exchange for the ultimate sale. The language and purpose of § 12(1) suggest that liability extends only to the person who successfully solicits the purchase, motivated at least in part by a desire to serve his own financial interests or those of the securities owner. If he had such a motivation, it is fair to say that the buyer "purchased" the security from him and to align him with the owner in a rescission action. [Footnote 23]
Petitioner is not satisfied with extending § 12(1) primary liability to one who solicits securities sales for financial gain. Pinter assumes, without explication, that liability is not limited to the person who actually parts title with the securities, and urges us to validate, as the standard by which additional defendant-sellers are identified, that version of the "substantial factor" test utilized by the Fifth Circuit before the refinement espoused in this case. [Footnote 24] Under that approach,
grounded in tort doctrine, a nontransferor § 12(1) seller is defined as one "whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place." Pharo v. Smith, 621 F.2d 656, 667 (CA5 1980). [Footnote 25]
The Court of Appeals acknowledged that Dahl would be liable as a statutory seller under this test. 787 F.2d at 990.
We do not agree that Congress contemplated imposing § 12(1) liability under the broad terms petitioner advocates. There is no support in the statutory language or legislative history for expansion of § 12(1) primary liability beyond persons who pass title and persons who "offer," including those who "solicit" offers. Indeed, § 12's failure to impose express liability for mere participation in unlawful sales transactions suggests that Congress did not intend that the section impose liability on participants collateral to the offer or sale. When Congress wished to create such liability, it had little trouble doing so. Cf. Touche Ross & Co. v. Redington,442 U. S. 560, 442 U. S. 572 (1979). [Footnote 26]
The deficiency of the substantial factor test is that it divorces the analysis of seller status from any reference to the applicable statutory language and from any examination of § 12 in the context of the total statutory scheme. Those courts that have adopted the approach have not attempted to ground their analysis in the statutory language. Seen 25, supra. Instead, they substitute the concept of substantial participation in the sales transaction, or proximate causation of the plaintiff's purchase, for the words "offers or sells" in § 12. The "purchase from" requirement of § 12 focuses on the defendant's relationship with the plaintiff-purchaser. The substantial factor test, on the other hand, focuses on the defendant's degree of involvement in the securities transaction and its surrounding circumstances. Thus, although the substantial factor test undoubtedly embraces persons who pass title and who solicit the purchase of unregistered securities as statutory sellers, the test also would extend § 12(1) liability to participants only remotely related to the relevant aspects of the sales transaction. Indeed, it might expose securities professionals, such as accountants and lawyers, whose involvement is only the performance of their professional services, to § 12(1) strict liability for rescission. The buyer does not, in any meaningful sense, "purchas[e] the security from" such a person. [Footnote 27]
Further, no congressional intent to incorporate tort law doctrines of reliance and causation into § 12(1) emerges from the language or the legislative history of the statute. Indeed, the strict liability nature of the statutory cause of action suggests the opposite. See Douglas & Bates, 43 Yale L.J. at 177. By injecting these concepts into § 12(1) litigation, the substantial factor test introduces an element of uncertainty into an area that demands certainty and predictability. As the Fifth Circuit has conceded, the test affords no guidelines for distinguishing between the defendant whose conduct rises to a level of significance sufficient to trigger seller status, and the defendant whose conduct is not sufficiently integral to the sale. See Pharo v. Smith, 621 F.2d at 667. [Footnote 28] None of the courts employing the approach has articulated what measure of participation qualifies a person for seller status, and logically sound limitations would be difficult to develop. As a result, decisions are made on an ad hoc basis, offering little predictive value to participants in securities transactions. See Croy v. Campbell, 624 F.2d 709, 714 (CA5 1980); Pharo v. Smith, 621 F.2d at 667. We find it particularly unlikely that Congress would have ordained sub silentio the imposition of strict liability on such an unpredictably defined class of defendants.
Not surprisingly, Pinter makes no attempt to justify the substantial factor test as a matter of statutory construction. Instead, the sole justification Pinter advances is that extending
§ 12 liability pursuant to the test protects investors and serves the "remedial purposes" of the Securities Act. See also, e.g., Lennerth v. Mendenhall, 234 F.Supp. 59, 65 (ND Ohio 1964). The Court has acknowledged that "it is proper for a court to consider . . . policy considerations in construing terms in [the federal securities] Acts." Landreth Timber Co. v. Landreth,471 U. S. 681, 471 U. S. 695, n. 7 (1985). And the Court has recognized that Congress had "broad remedial goals" in enacting the securities laws and providing civil remedies. Ernst & Ernst v. Hochfelder, 425 U.S. at 425 U. S. 200; Tcherepnin v. Knight,389 U. S. 332, 389 U. S. 336 (1967). Accordingly, the Court itself has construed securities law provisions "not technically and restrictively, but flexibly to effectuate [their] remedial purposes.'" Affiliated Ute Citizens v. United States,406 U. S. 128, 406 U. S. 151 (1972), quoting SEC v. Capital Gains Research Bureau,375 U. S. 180, 375 U. S. 195 (1963). But the Court never has conducted its analysis entirely apart from the statutory language.
"The ultimate question is one of congressional intent, not one of whether this Court thinks it can improve upon the statutory scheme that Congress enacted into law."
Touche Ross & Co. v. Redington, 442 U.S. at 442 U. S. 578. The ascertainment of congressional intent with respect to the scope of liability created by a particular section of the Securities Act must rest primarily on the language of that section. See Santa Fe Industries, Inc. v. Green,430 U. S. 462, 430 U. S. 472 (1977). The broad remedial goals of the Securities Act are insufficient justification for interpreting a specific provision "more broadly than its language and the statutory scheme reasonably permit.'" Touche Ross, 442 U.S. at 442 U. S. 578, quoting SEC v. Sloan,436 U. S. 103, 436 U. S. 116 (1978). We must assume that Congress meant what it said.
The substantial factor test reaches participants in sales transactions who do not even arguably fit within the definitions set out in § 2(3); it "would add a gloss to the operative language of [§ 12(1)] quite different from its commonly accepted
meaning." Ernst & Ernst v. Hochfelder, 425 U.S. at 425 U. S. 199. We conclude that Congress did not intend such a gross departure from the statutory language. Accordingly, we need not entertain Pinter's policy arguments. [Footnote 29] Being merely a "substantial factor" in causing the sale of unregistered securities is not sufficient in itself to render a defendant liable under § 12(1).
We are unable to determine whether Dahl may be held liable as a statutory seller under § 12(1). The District Court explicitly found that
"Dahl solicited each of the other plaintiffs (save perhaps Grantham) in connection with the offer, purchase, and receipt of their oil and gas interests."
App. to Pet. for Cert. a-34. We cannot conclude that this finding was clearly erroneous. It is not clear, however, that Dahl had the kind of interest in the sales that make him liable as a statutory seller. We do know that he received no commission from Pinter in connection with the other sales, but this is not conclusive. Typically, a person who solicits the purchase will have sought or received a personal financial benefit from the sale, such as where he "anticipat[es] a share of the profits," Lawler v. Gilliam, 569 F.2d at 1288, or receives a brokerage commission, Cady v. Murphy, 113 F.2d at 990. But
a person who solicits the buyer's purchase in order to serve the financial interests of the owner may properly be liable under § 12(1) without showing that he expects to participate in the benefits the owner enjoys.
The Court of Appeals apparently concluded that Dahl was motivated entirely by a gratuitous desire to share an attractive investment opportunity with his friends and associates. See 787 F.2d at 991. This conclusion, in our view, was premature. The District Court made no findings that focused on whether Dahl urged the other purchases in order to further some financial interest of his own or of Pinter. Accordingly, further findings are necessary to assess Dahl's liability. [Footnote 30]
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of this case.
Petitioners are Pinter, individually and d.b.a. Black Gold Oil Company, Pinter Energy Company, and Pinter Oil Company. Throughout this opinion, we often refer to petitioners collectively as "Pinter."
Respondents are Maurice Dahl, Gary Clark, W. Grantham, Robert J. Daniele, Charles Dahl, Dowayne C. Bockman, Ray Dilbeck, Richard Koon, Art Overgaard, Jack Yeager, Accra Tronics Seals Corp., and Aaron Heller. These persons are Dahl's brother, his accountant, his partner in a construction business, the bank officer handling his construction loans, his construction business insurance agent, a business owned by a long-time friend, and other business associates and friends of Maurice Dahl. See App. 101-104.
The venture included still others who were either interested in additional ventures organized by Pinter or were new investors who met Pinter through sources other than Dahl. Those investors are not parties to this litigation.
Specifically, each document recited:
"WHEREAS the parties constitute a predetermined and limited group of sophisticated and knowledgeable, well informed investors who desire to arrange for participation in an oil and/or gas drilling venture as an investment and do declare that it is not for the purpose of reselling their interest therein. (These participating interests are being sold without the benefit of registration under the Securities Act of 1933, as amended, and on reliance of rule 146 thereunder)."
App. 95. See alson 4, infra.
Rule 146 was rescinded, effective June 30, 1982, by SEC Release No. 336389, 47 Fed.Reg. 11251 (1982), and superseded by provisions of Regulation D, 17 CFR, p. 425 (1987).
Section 12 provides:
"Any person who -- (1) offers or sells a security in violation of section  . . . shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security."
Section 5, 15 U.S.C. § 77e, referred to in § 12, states, in pertinent part, that if a security is unregistered, it is unlawful for a person to sell or deliver the security in interstate commerce.
A number of exemptions, however, enable an issuer to avoid the registration requirement of the Securities Act. One of these, § 4(2), 15 U.S.C. § 77d(2), commonly referred to as the "private-offering" exemption, relieves from registration "transactions by an issuer not involving any public offering." See SEC v. Ralston Purina Co.,346 U. S. 119 (1953) (establishing criteria for determining whether an offering fits the private offering exemption).
In 1974, the Commission sought to provide "objective standards" under § 4(2) by adopting Rule 146. Rule 146 -- Transactions by an Issuer Deemed Not to Involve Any Public Offering, Securities Act Rel. No. 335487 (effective June 10, 1974), 39 Fed.Reg. 15261 (1974), CCH Fed.Sec.L.Rep.