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ATTORNEYS FOR APPELLANT Lynne D. Lidke Michael B. Langford A. Jack Finklea Indianapolis, Indiana

ATTORNEYS FOR APPELLEES Martin T. Fletcher, Sr. David E. Bailey Fort Wayne, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 49S02-0701-CV-14 RALPH E. LEAN, Appellant (Defendant below), v. CHARLES D. REED AND PAUL A. REINKEN, Appellees (Plaintiffs below),
AND

GALAXY ONLINE, INC. AND GALAXY INTERNET, INC., . Appellees (Defendants below). _________________________________ Appeal from the Marion Superior Court, No. 49D07-0307-PL-001375 The Honorable Gerald S. Zore, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0602-CV-126 _________________________________ November 27, 2007 Boehm, Justice. The Indiana Securities Law creates liability of a director of a corporation for violations of the requirement that the corporation's securities be registered and for misrepresentations and omissions of material facts in the sale of its securities. The director may establish a defense that

in the exercise of reasonable care he did not know and could not have known of the violations. In most cases reasonable care is a fact issue. However, where it is undisputed that the director had no basis other than an assumption that management and counsel had arranged the transaction in conformity to law, failure to exercise reasonable care is established as a matter of law. Factual and Procedural Background The plaintiffs are shareholders who exchanged their shares in Abacus Computer Services, Inc. for shares of Galaxy Online, Inc. (GOLI). They sued GOLI and its officers and directors for alleged violations of the Indiana Securities Law (ISL) in that transaction. This is an appeal from a grant of partial summary judgment declaring Ralph Lean, one of the GOLI directors, liable to the plaintiffs under section 19(d) of the ISL but leaving damages for trial. GOLI is a corporation organized and existing under the laws of the Yukon Territory. GOLI was engaged in gold mining, but by mid-1999, was failing, and its directors shifted the company's focus to the internet. Galaxy Internet, Inc. (GI), unrelated to GOLI, had been formed in September 1998 to become an internet service provider. By mid-1999, GI remained essentially a shell corporation funded by loans from its directors but unable to raise the capital required to become an operating business. In the spring of 1999, the directors of GOLI and GI devised a plan to permit GI to expand and to keep GOLI alive. In December 1999, GOLI disposed of its remaining mining assets and changed its stated purpose to engaging in the internet business. GOLI then issued 20,000,000 new shares of common stock to acquire GI and an affiliated corporation. This brought GOLI's total issued shares to 47,000,000. In January and February of 2000, GOLI raised cash by issuing an additional 3.8 million shares to various groups, including some of GOLI's officers and directors at prices from $1.25 to $1.50 per share. GOLI also began issuing its common stock to acquire existing internet service providers, including Abacus Computer Services, Inc., an Indiana corporations based in Indianapolis. 1 GOLI reached an agreement to acquire Abacus in "very late March" of 2000 and the deal closed on March 31, 2000. Abacus shareholders were issued a total of 600,000 shares of GOLI common stock, of which 200,000 shares were issued to each of Abacus's founders, Charles D.

The facts in this paragraph are taken from the complaint which was designated by Lean pursuant to Trial Rule 56(C) and are not contested.

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Reed and Paul A. Reinken, both residents of Indiana and the plaintiffs in this lawsuit. GOLI's shares were not registered under section 3 of the ISL, and Lean concedes that there were material omissions in the disclosures incident to the Abacus acquisition. The complaint alleges that Reed and Reinken valued Abacus at $3,600,000, or $6.00, per GOLI share, and they seek to recover $1,200,000 each plus interest and attorney fees. The amount of requested damages suggests that GOLI's shares became worthless, but the record gives only sketchy information of GOLI's history after the Abacus acquisition. We are told that GOLI's shares traded on the Toronto Stock Exchange at prices up to $18.00 (either U.S. or Canadian), and Lean resigned from the Board on March 27, 2001 due to his concern over the "financial deterioration of the company" and "its ability to continue as a going business." 2 The plaintiffs allege sales of unregistered securities in violation of section 3 of the ISL and material misrepresentations and omissions in violation of section 12(2). The complaint asserts joint and several liability of GOLI, GI, and ten individuals who were officers, directors, or controlling persons of GOLI. The claim against the individuals is based on the derivative liability provisions found in section 19(d) of the ISL. The plaintiffs moved for partial summary judgment against Lean, seeking a determination that Lean was liable to them under section 19(d), but leaving damages for trial. The trial court granted partial summary judgment in favor of the plaintiffs, concluding that Lean was liable to the plaintiffs under section 19(d) and rejecting his defense of reasonable care. The order granting summary judgment was appealable as a final order under Trial Rule 54(B), and Lean appealed, naming the plaintiffs, GOLI, and GI as appellees. Only Lean and the plaintiffs appeared in the Court of Appeals. The record does not fully explain the status of claims against other parties. 3 The Court of Appeals affirmed. Lean v. Reed, 854 N.E.2d 79 (Ind. Ct. App. 2006). We granted transfer. 2007 Ind. LEXIS 52 (Ind. Jan. 11, 2007). 4

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The facts in this paragraph are undisputed according to the evidence designated pursuant to Trial Rule 56(C). 3 The CCS refers to dismissals as to several of the other defendants and also refers to an order of the bankruptcy court without identifying the bankrupt. The status of remaining claims, if any, against other defendants is unclear. 4 At a time when this opinion was substantially completed the parties notified this court informally that settlement of this case was imminent. Subsequently they filed a notice that the case had been dismissed

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Standard of Review "The standard of review of a summary judgment ruling is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Row v. Holt, 864 N.E.2d 1011, 1013 (Ind. 2007) (quoting Gunkel v. Renovations, Inc., 822 N.E.2d 150, 152 (Ind. 2005)). All inferences are to be drawn in favor of the non-moving party. Id. Liability of Directors Under the Indiana Securities Law A. Relevant Statutory Law The ISL, Indiana Code sections 23-2-1-1 to 25, is a version of the Uniform Securities Act of 1956. Like its counterparts in most states, it requires registration of newly issued securities and imposes liability for selling unregistered securities. Section 19(a) of the ISL imposes civil liability on the seller of unregistered securities unless an exemption applies for the security or the transaction. 5 Section 19(b) creates a civil remedy against the seller for violations of the Act, and Section 12(2) provides that a sale of securities by means of a material misrepresentation or omission violates the Act. 6 Section 19(d) of the ISL provides in relevant part: A person who directly or indirectly controls a person liable under subsection (a), (b), or (c), a partner, officer or director of the person, . . . are also liable jointly and severally with and to the same extent as the person, unless the person who is liable sustains the burden of proof that the person did not know and in the
by the trial court with prejudice pursuant to a stipulation of dismissal. Although as between the parties this matter is now settled, we nonetheless believe the legal issues raised in this case are significant and warrant this Court's attention. We therefore publish the opinion. 5 Indiana Code section 23-2-1-3 provides: "It is unlawful for any person to offer or sell any security in Indiana unless: (1) it is registered under this chapter; (2) the security or transaction is exempted under section 2 of this chapter; or (3) it is a federal covered security." 6 Indiana Code section 23-2-1-12 provides: It is unlawful for any person in connection with the offer, sale or purchase of any security, either directly or indirectly, . . . (2) to make any untrue statements of material fact or to omit to state a material fact necessary in order to make the statements made in the light of circumstances under which they are made, not misleading . . . .

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exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. The net effect of these provisions is that a director of a selling corporation who cannot sustain the reasonable care defense is liable for both registration and disclosure violations by the corporation. B. The Parties' Contentions The plaintiffs' motion for summary judgment contended that Lean's liability to them was established by undisputed facts. As for the registration claim, these facts were that GOLI issued stock to the plaintiffs in exchange for value, Lean was a director of GOLI at the time the stock was issued, the securities were not registered, and no exemption applied. The plaintiffs also contend there was no factual issue as to the claim that the transaction violated section 12(2) of the Act because GOLI misrepresented or omitted to disclose the following material facts: a) in December 1999, GOLI issued 20 million shares at prices ranging from $0.08 to $0.78 per share, b) at the end of 1999, GOLI had issued options to purchase over 10 million GOLI shares at prices from $0.08 to $0.78 per share, c) between January 1 and February 22, 2000, GOLI granted 5,160,000 stock purchase options to GOLI's corporate officers, directors including Lean, and key employees exercisable at $1.25 to $1.50 per share, and d) on February 22, 2000, GOLI sold 2,577,084 shares of GOLI stock in a private placement at $0.70 per share. Lean conceded all these facts. Lean denied the plaintiffs' allegation that they had no knowledge of any of the violations of the ISL, but he designated no evidence contesting the plaintiffs' affidavits that they were unaware of the lack of registration or the transactions with officers and directors. Accordingly, for purposes of summary judgment the trial court accepted these facts as established.

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Lean does not dispute that GOLI is "a person liable under subsection (a)" for issuing unregistered securities to the plaintiffs in violation of section 3 and for material omissions in the disclosures incident to that transaction in violation of section 12(2). Lean does dispute, however, whether his conduct in approving the issuance of GOLI stock was reasonable. Lean contends that the trial court's summary judgment ruling in favor of the purchasers, "erroneously overlooks questions of material fact, imposes an absolute duty of inquiry upon Lean not required by Indiana law, and effectively eliminates from Section 19(d) the reasonable care defense to which Lean is entitled." Lean's principal contention is that there is an issue of fact raised by his affirmative defense that he "did not know, and in the exercise of reasonable care could not have known," of the facts that created GOLI's liability. The plaintiffs respond that Lean failed to carry the burden of establishing this affirmative defense. Lean argues that "reasonable care" required by section 19(d) places no duty to inquire as to the compliance with registration requirements or adequacy of disclosures. He contends that both are left to managers and the corporate attorneys to address. In short, Lean contends that, as a matter of law, it is reasonable care for a director to assume that management and its advisers have taken the appropriate steps to comply with legal requirements. Lean argues that this is particularly true of a director new to the board at the time the securities transaction is approved. Alternatively, Lean contends that summary judgment is never appropriate to resolve a question of "reasonable care" because it is ultimately a question for the trier of fact. C. Federal Case Law Lean directs us to federal cases interpreting a similar defense under the civil remedy provision of the Securities Act of 1933 section 12(a)(2), 15 U.S.C. section 77l(a)(2) (2000). There is a well-developed body of case law under the federal securities laws, and in many cases federal authority is appropriate in interpreting the standards required by state securities law. Paul J. Galanti, Business Associations, 14 Ind. L. Rev. 91, 95 (1981). But many state securities laws antedate the Securities Act of 1933 and "provide more rigorous standards for the offer and sale of securities than does the federal regime." Johnson v. Colip, 658 N.E.2d 575, 576 (Ind. 1995) (citing Louis Loss & Joel Seligman, 1 Securities Regulation 59 (3d ed. 1989), as suggesting that Congress might not have been satisfied with the less stringent requirements of the Securities Act

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of 1933 had it not been for the already established and more protective state Blue Sky Laws). Federal authority does not provide useful guidance on points where there are important differences between the state statute and its federal counterparts. C.f. Kirchoff v. Selby, 703 N.E.2d 644, 650 (Ind. 1998). Lean's reliance on federal case law is misplaced because derivative liability under 19(d) of the ISL is an instance where state laws generally and the ISL in particular impose a higher standard. Section 12(a)(2) of the Securities Act of 1933 by its terms imposes liability only on the seller and its "controlling persons" and describes the reasonable care defense differently. Directors are often, but not always, "controlling persons," and even if they are, under the federal statute they enjoy a much more generous defense. 7 In Kirchoff, we noted the difference between federal and Indiana securities law provisions imposing derivative liability on individuals for unlawful sales of securities. 703 N.E.2d at 650-51. Unlike the Securities Act of 1933, which imposes liability on only the seller and controlling persons, the ISL also provides for derivative liability of "directors" and several others. The defenses available to these individuals are not

uniform. Employees, broker-dealers, and securities agents of the seller must "materially aid" in the violation before they are liable under section 19(d) of the ISL. Arnold v. Dirrim, 398 N.E.2d 426, 433-34 (Ind. Ct. App. 1979). In contrast, Indiana's section 19(d) "imposes absolute liability upon the director of a corporation to purchasers of securities sold in violation of the Securities Act based on his position as a director unless he proves the statutory defense." Id. As a result of these important differences in statutory language, unlike claimants under the Securities Act of 1933, purchasers of securities sold in violation of section 19(d) need not prove that a director was a controlling person or participated in the violation in order to establish a claim under the
Federal courts have interpreted liability of a "controlling person" to require proof by the plaintiff that the defendant was a "culpable participant" in the unlawful securities sale. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 108 (2d Cir. 2007); Lanza v. Drexel & Co., 479 F.2d 1277, 1299 (2d Cir. 1973) ("The intent of Congress in adding this section . . . was obviously to impose liability only on those directors who fall within its definition of control and who are in some meaningful sense culpable participants in the fraud perpetrated by controlled persons."); Carpenter v. Harris, Upham & Co., 594 F.2d 388, 394 (4th Cir. 1979). In Davis v. Avco Financial Services, Inc., 739 F.2d 1057, 1068 (6th Cir. 1984), the Sixth Circuit concluded that in determining whether a person has exercised due care as an affirmative defense to a section 12(a)(2) Federal 1933 Securities Act violation, the court should consider: (1) the quantum of decisional (planning) and facilitative (promotional) participation . . .(2) access to source data against which the truth or falsity of representations can be tested, (3) relative skill in ferreting out the truth . . ., (4) pecuniary interest in the completion of the transaction, and (5) the existence of a relationship of trust and confidence between the plaintiff and the alleged "seller."
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ISL. Because of the differences in the provisions imposing derivative liability under the Securities Act of 1933 and the ISL, decisions under the 1933 Act are not necessarily useful in interpreting section 19(d) of the ISL. D. Reasonable Care Under Section 19(d) The ISL liability provisions differ in some respects from those found in the Uniform Securities Act of 1956. Kirchoff v. Selby, 703 N.E.2d 644, 650 (Ind. 1998). In this case, however, the relevant Indiana language is identical to the Uniform Securities Act. An individual who is potentially derivatively liable for a violation by a seller of securities bears the "burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist." 8 Section 19(d) of Indiana's Act (which applies to buyers and sellers) tracks this language of the Uniform Act verbatim. Accordingly, precedent from other states adopting the Uniform Securities Act is useful. The plaintiffs rely principally on Robertson v. White, 635 F.Supp. 851 (W.D. Ark. 1986), and Hines v. Data Line Systems, Inc., 787 P.2d 8 (Wash. 1990), in support of their position that directors have an "affirmative duty to inquire to learn whether a corporation has registered its stock and/or disclosed material information to potential investors." Like Lean, the directors in Robertson opposed summary judgment based on the reasonable care defense, including a claim that they relied on the advice of counsel. Id. at 866. The Robertson court rejected this contention, concluding that the liability imposed on directors "is strict, subject only to their showing that they were either unaware that the corporation was engaged in a securities transaction or that the directors reasonably believed that the securities being sold were properly registered or exempt." Id. After reviewing the evidence, Robertson summarized it as establishing: (1) that the directors did the best they could, but were unfamiliar with corporation and securities laws; (2) that the directors hired lawyers and accountants to help them, and the lawyers and accountants assured them that everything was all right,
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This language is from the Civil Liability section, section 410, of the 1956 Uniform Securities Act. This section now appears in the 2002 Uniform Securities Act in section 509. Although there are notable differences between the two sections in other respects, comment 9 of the 2002 Act provides that the lack of knowledge defense is modeled on the 1956 Act. Indiana has adopted the 2002 Act and tracks the relevant portions of section 509 verbatim, but it does not take effect until July 1, 2008. Indiana Uniform Securities Act, P.L. 27-2007

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