523 F.

2d 680

Fed. Sec. L. Rep. P 95,294

Macauley WHITING, Plaintiff-Appellant,
v.
The DOW CHEMICAL COMPANY, Defendant-Appellee.
No. 1025, Docket 75-7106.

United States Court of Appeals,

Second Circuit.
Argued June 17, 1975.
Decided Sept. 22, 1975.

Russel H. Beatie, Jr., New York City (Dewey, Ballantine, Bushby, Palmer
& Wood and Brendan P. Bovaird, New York City, of counsel), for
plaintiff-appellant.
Arthur F. Mathews, Washington, D. C. (Wilmer, Cutler & Pickering and
Stephen F. Black, Washington, D. C., and Paul R. Grand and Poletti
Friedin Prashker Feldman & Gartner, New York City, of counsel), for
defendant-appellee.
Before GIBBONS,* GURFEIN and MESKILL, Circuit Judges.
GURFEIN, Circuit Judge:

This appeal presents a difficult and important question of first impression in this
court concerning the interpretation of 16(b) of the Securities Exchange Act of
1934, 15 U.S.C. 78p(b), as it applies to the matching transactions of a
corporate insider and his spouse. The issue is whether a corporate director may
be held to have "realized profit" within the meaning of 16(b) as a result of a
matching of his wife's sales and his own purchase of his company's securities
within the statutory six-month period.1

In a thorough opinion after a non-jury trial, Judge Ward dismissed the

complaint of Macauley Whiting, a director of Dow Chemical Company
("Dow"), which sought a declaratory judgment that he was not liable to Dow
under 16(b) and awarded judgment to Dow on its counterclaim for the profits

realized. 386 F.Supp. 1130 (S.D.N.Y.1974). We affirm.

3

* Helen Dow Whiting sold an aggregate of 29,770 shares of Dow stock for.$1.6
million during September and November of 1973 at an average price of $55$56. In December 1973 her husband, appellant Macauley Whiting, exercised an
option to purchase 21,420 Dow shares for $520,000 at a price of $24.3125. He
exercised the option with funds he borrowed from his wife, which were part of
the proceeds of her sales of the Dow stock in the preceding two months.

Macauley Whiting has been a director of Dow since 1959. His wife of thirty
years is a granddaughter of the founder of Dow, and acquired substantial
amounts of Dow stock over the years by gift and inheritance, and these assets
are segregated from appellant's. On the other hand, Judge Ward found that "the
resources of both husband and wife are significantly directed toward their
common prosperity, and they easily communicate concerning matters which
relate to that prosperity." Moreover, the Whitings' separate accounts are
managed by the same financial advisors. The Whitings file joint tax returns,
and their common financial planning has included Mrs. Whiting's use of her
husband's annual gift tax exclusion to make charitable gifts and gifts to trusts
established for their six children.

Mrs. Whiting's personal wealth and income primarily consisting of dividends

and capital gains derived from her Dow holdings is considerably larger than
that of her husband. Although Judge Ward found that Mr. Whiting contributes
virtually his entire salary toward family expenses, he also found that Mrs.
Whiting is primarily responsible for the considerable costs incurred in the style
of living the Whitings have chosen to pursue. It is her dividend income, for
example, which has provided for education of the Whitings' children, which
defrays medical expenses, which maintains a family vacation home, and which
pays real estate taxes on the Whitings' property.

Mrs. Whiting's sales of the Dow stock in September and November of 1973
were made pursuant to a long-term investment plan, arranged by the Whitings
and their financial advisor, which was designed to diversify the holdings of the
family and to obtain tax benefits. The court found that the Whitings discussed
the general philosophy to govern the management of Mrs. Whiting's estate, and,
in early 1972, agreed on a major shift in their philosophy. They then discharged
their long-time investment advisor. Desiring to pursue a more aggressive
investment program, the Whitings in late 1972 retained new investment
counselors, Smith, Barney & Company, Inc. ("Smith Barney"), and new tax,
accounting and estate planning advisors, Goldstein, Golub, Kessler & Company
("Goldstein"). As had been the case with their previous financial advisor, the

Whitings continued to maintain formal segregation of their investment

accounts, but these accounts were managed jointly as discretionary accounts
under the supervision of one person at Smith Barney.
7

Since January 1966, in the Form 3 and 4 reports he was required to make as a
Dow director pursuant to 16(a),2 Mr. Whiting regularly reported his wife's
Dow stock as "directly owned" by him, and never disclaimed ownership as he
might have pursuant to SEC regulations,3 a procedure of which he was made
aware by Dow's counsel. Under SEC Rule 144(a)(2)(i), 17 C.F.R. 230.144(a)
(2)(i), effective April 15, 1972, Mrs. Whiting as a "relative or spouse" was
herself required to report her sales of Dow stock. From the outset Smith Barney
advised the Whitings that it considered Mrs. Whiting to be a "control" person of
Dow by reason of Mr. Whiting's position as a Dow director. The Whitings
acquiesced in such treatment, and Mrs. Whiting, thereafter, regularly filed Form
144 reports with the SEC covering Her sales of Dow stock.4

Judge Ward found that not only did Mr. and Mrs. Whiting use the same
financial advisors, but both were present at many meetings with these advisors;
they had a "general philosophy" concerning the management of the family
estates. He also found that Mrs. Whiting upon occasion "consults her husband
concerning the desirability of certain investments in areas of his expertise," but
that "Mr. Whiting does not communicate with his wife concerning the affairs of
(Dow)." 386 F.Supp. at 1132.

In December 1972 discussions were begun at the Goldstein office, Mr. and
Mrs. Whiting being present, at which certain of the subjects were recorded as
"Mr. Whiting's 1972 executive compensation award," joint contributions to
their charitable foundation and "investment philosophy." They met with the
advisors again on May 31, 1973 when, among other things, there was a
discussion of estate planning, investments in municipal bonds and "whether Mr.
Whiting should exercise his options in Dow Chemical in 1973 or 1974." A
Goldstein executive was "to prepare a projection comparing the tax
consequences of the sale of Dow stock versus the exercise of stock options."
The reference to sales of Dow stock was in the context of the planning of sales
of Mrs. Whiting's Dow stock.

10

The conference was resumed on October 29, 1973, when "(i)t was suggested
that Mr. Whiting exercise his options in Dow Chemical, in total, this year, due
to the adverse consequences which could result upon the exercise in 1974 if the
proposed concept of minimum taxable income becomes law." The possible tax
difference between exercise in 1973 and in 1974 was described as about
$245,000. The question of the best method of funding the exercise of the option

was discussed, together with "the Tax and economic consequences of intrafamily borrowing as opposed to borrowing from a third party" (emphasis
added).
11

During the time these discussions were taking place, the pace of Mrs. Whiting's
disposition of Dow stock was increased from 2% A year to 5% In the spring of
1973, and to 10% In the fall of 1973.5

12

Thus, while Mrs. Whiting was selling 29,770 shares of Dow stock in September
and November, Mr. Whiting was buying, through exercise of the option, 21,420
shares in December. Mrs. Whiting was selling at an average price of $55-$56,
while Mr. Whiting was buying at the fixed price of $24.3125.

13

As we have seen, Goldstein advised the Whitings on October 29 that Mr.

Whiting should finance the exercise of his option by means of an intrafamily
loan from his wife. Mr. Whiting explored the possibility of obtaining a personal
loan through Harris Bank of Chicago, and he was quoted an interest rate of
1/4% To 1/2% Over the then prevailing prime lending rate of about 10%.
Ultimately, for reasons not revealed by the record but apparent from the
circumstances, Mr. Whiting informed the Harris Bank that "(w)e have been
able to get the cash required From sale of stock and will not need the loan at
this time" (emphasis added). The "sale of stock" to which Mr. Whiting referred
was the very sale of Dow stock by Mrs. Whiting now at issue. Appellant
borrowed the $520,000 he needed to exercise his option from his spouse and
used it for that purpose. The loan was at 7% Interest, and no repayment terms
were specified.

II
14

It is strange that more than forty years of experience with Section 16(b) has
yielded practically no judicial guidance on Section 16(b) liability concerning
attribution of transactions By the spouse of a director.6 But see Blau v. Potter,
CCH Fed.Sec.L.Rptr. P 94,115 (S.D.N.Y.1973); Schur v. Satzman, 365 F.Supp.
725, 732 (S.D.N.Y.1973). And see SEC v. Texas Gulf Sulphur Co., 401 F.2d
833, 841 n. 4 (2 Cir. 1968), Cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22
L.Ed.2d 756 (1969). The decision below proceeded on the assumption that,
under the circumstances related, appellant was the "beneficial owner" of the
securities sold by the wife.

15

Cases where the husband simply buys stock and puts the shares in his wife's
name are relatively simple; so, too, perhaps where he has sole control of her

account. The difficulty arises when, as here, the securities are incontestably the
wife's, but where the husband obtains benefits, nevertheless, from the dividends
and proceeds of sale through the wife's supplying the larger share of family
expenses. The problem is compounded by the action of both spouses in
managing both the sales and the exercise of the option jointly, and further by
the use of the proceeds of sale for the exercise of the option.
16

Judge Ward concluded that "there is no evidence that he controls her decisions
concerning even the general aspects of her management of her estate." 386
F.Supp. at 1132. Appellant contends that the court's conclusion that there was
no evidence of control mandates a declaratory judgment for the plaintiff. We
cannot agree, for the legal conclusion depends upon the totality of the facts.

17

Recognizing that the wife has her separate estate, and that the husband does not
"control" its disposition in the Exclusive sense of the term, the question is
whether the other indicia of their relationship are sufficient to bring the
transactions under the rule of Section 16(b), as the District Court held.

18

The method to be used in interpreting the reach of 16(b) has been the subject
of judicial differences of opinion. See the respective arguments of Judge
Medina and Judge Clark in Blau v. Lehman, 286 F.2d 786 (2 Cir. 1960).

19

Though the present Chief Justice believed that 16(b) is "subject to that
interpretation most consistent with the legislative purpose," Adler v. Klawans,
267 F.2d 840, 844 (2 Cir. 1959), he also concurred in Reliance Electric Co. v.
Emerson Electric Co., 404 U.S. 418, 422, 92 S.Ct. 596, 599, 30 L.Ed.2d 575
(1972), where the Court said that "(a) person avoids liability if he does not
meet the statutory definition of an 'insider.' " And the Court in Blau v. Lehman,
368 U.S. 403, 411, 82 S.Ct. 451, 456, 7 L.Ed.2d 403 (1962), rejected the
argument "that the Act should be broadened . . . to prevent 'the unfair use of
information' more effectively than can be accomplished by leaving the Act so
as to require forfeiture of profits only by those specifically designated by
Congress to suffer those losses."

20

Congress has made no specific provision for treating as an insider the spouse of
an insider who has a separate estate, but the statute does require reporting by a
director of securities of the issuer of which he is "the beneficial owner."
16(a).7 To find a director liable for a violation of 16(b) with respect to
purchases and sales of stock of which he is the "beneficial owner," we may
consider whether the reporting provisions give meaning to the liability
provisions. See Lewis v. Varnes, 505 F.2d 785, 788 (2 Cir. 1974).8

21

The Securities and Exchange Commission has variously required the reporting
of securities owned by the spouse of an insider when the insider had received
"benefits substantially equivalent to ownership" by reason of his spouse's
holdings or when the insider has the right to revest title to such shares in
himself.9 There appears to be no judicial decision squarely in support of the
Commission's interpretation though there can be little doubt that the second part
of the definition, not applicable here, is correct.

22

The question is whether the term "beneficial owner(ship)" includes securities

from which the spouse has shared "benefits substantially equivalent to
ownership." See SEC Securities Exchange Act Release No. 7793 (Jan. 19,
1966), quoted in the margin.10

23

In a traditional sense, in the absence of a statutory definition, a beneficial owner

would be a person who does not have the legal title to the securities but who is,
nevertheless, the beneficiary of a trust or a joint venture, or is a shareholder in a
corporation which owns the shares. See, E. g., Marquette Cement Mfg. Co. v.
Andreas, 239 F.Supp. 962, 966-67 (S.D.N.Y.1965). In the normal equity sense,
Mr. Whiting would not be the beneficial owner of his wife's separate estate.

24

The Commission's definition seeks to go further to include situations where the

insider indirectly benefits from the dividends though he does not own the
shares. The theory is that such an insider would be tempted to pass on inside
information to the holder of the stock from which he, himself, "benefits" and
thus falls within the class intended by Congress.11

25

The January 1966 release of the Commission said that "a person ordinarily
should include in his reports filed pursuant to Section 16(a) securities held in
the name of a spouse or minor children as being beneficially owned by him."
But it amended the release within a month to make it clear that a requirement to
report is not necessarily coextensive with 16(b) liability. The Commission in
the subsequent Release No. 7824 of February 14, 1966 stated that the opinion
expressed with respect to beneficial ownership of securities held by family
members does not necessarily mean that liability will result under Section 16(b)
from transactions by such family members. This was a matter to be determined
by the facts of each particular case in an appropriate action brought by the
issuer or its security holders. See Shreve, Beneficial Ownership of Securities
Held by Family Members 22 Bus.Law. 431 (1967).

26

Thus, in a statute ( 16(b)) intended to be simple and arbitrary in its application,

we confront a situation that cannot be resolved by legal interpretation but which

requires a determination of questions of fact. Statements that the purpose of the

statute is remedial, Smolowe v. Delendo Corp., 136 F.2d 231, 239 (2 Cir.),
Cert. denied, 320 U.S. 751, 64 S.Ct. 56, 88 L.Ed. 446 (1943), and that the
"garden variety" of transaction in violation of 16(b) makes for absolute
liability, Abrams v. Occidental Petroleum Corp., 450 F.2d 157, 162 (2 Cir.
1971), Aff'd sub nom. Kern County Land Co. v. Occidental Petroleum Corp.,
411 U.S. 582, 93 S.Ct. 1736, 36 L.Ed.2d 503 (1973), are of some help. On the
one hand, we construe the words of the statute with a liberality of
interpretation, see Adler v. Klawans, supra, 267 F.2d at 844-47; Petteys v.
Butler, 367 F.2d 528, 532 (8 Cir. 1966), Cert. denied, 385 U.S. 1006, 87 S.Ct.
712, 17 L.Ed.2d 545 (1967); and on the other hand, we recognize that the
efficacy and purpose of 16(b) is its certainty and predictability. See 2 L. Loss,
Securities Regulation 1043 (2d ed. 1961). When its application is certain, the
unwary who fall within its terms have no one but themselves to blame. 12 When
status as "beneficial owner" becomes a question of fact rather than of law, the
warning may sometimes be inadequate for the automatic liability imposed.
27

In this case, the record indicates that appellant was informed by the assistant
general counsel for Dow that SEC Securities Exchange Act Release No. 7793
issued January 19, 1966 "now requires a director or officer to report the
holdings of securities of his wife and minor children. The rationale of this new
interpretation is that the income derived from shares so held might be used to
maintain a common home or meet expenses which could otherwise be met by
the husband from other sources, Or the husband might have the ability to
exercise a controlling influence over the purchase, sale, or voting of the
securities." Appellant was also informed that "it may be desirable for any
director or officer who wishes to expressly disclaim such beneficial ownership
to do so whenever he files future reports with the SEC."Thus, appellant had a
general awareness that he might be deemed "the beneficial owner" of his wife's
shares.13 He apparently did not know, however, that if shares are sold within
six months Before the exercise of an option, that is as much in violation of
16(b) as if the option had been exercised before the sale. See B. T. Babbitt, Inc.
v. Lachner, 332 F.2d 255 (2 Cir. 1964).

28

" Beneficial owner" is the language of 16(a) and we have been told to read
the words of 16(b) not literally. In the broader sense, we think the term
should be read more expansively than it would be in the law of trusts. For
purposes of the family unit, shares to which legal title is held by one spouse
may be said to be "beneficially owned" by the other, the insider, if the ordinary
rewards of ownership are used for their joint benefit. These rewards are
generally the dividend income as well as the capital gains on sale and the
power to dispose of the shares to their children by gift or upon death.

29

While we cannot earmark the proceeds of Mrs. Whiting's particular sales as

going to household and family support, we know from the findings that the
larger part of their joint maintenance came from her estate, the bulk of it in Dow
stock. We also know that they engaged in joint estate planning. So that while it
is true that if they ever separated, Mrs. Whiting would take her Dow shares, it
is also true that while they continue to live as a married couple, there is hardly
anything Mrs. Whiting gets out of the ownership that appellant does not share.

30

While the case is harder than if it had been Mr. Whiting who had put the shares
in his wife's name originally, the mischief that "inside information" will be
used is just as great.

31

In the words of the present Chief Justice, "(i)n addition to the intent and
purpose of the legislation which we must glean from the statute as a whole
rather than from isolated parts, we must consider the results which would flow
from each of the two interpretations contended for. If we find one interpretation
tends to carry out and the other to defeat the purposes of the statute, the
resolution of the issue becomes simple." Adler v. Klawans, supra, 267 F.2d at
844.

32

Turning to the specific facts, while there was no exclusive "control" by

appellant over his wife's separate investments generally, there was sufficient
evidence to establish that the questioned transactions were part of a common
plan, jointly managed by husband and wife.

33

In analyzing the family income available yearly, their joint advisors treated
their separate accounts as one in order to reach an aggregate sum. This was
sensible, for the Whitings were living on the incomes of both. The plans to
divest Mrs. Whiting of some of her Dow holdings were discussed by appellant
who took an interest in a more aggressive investment policy. The very exercise
of his option was the subject of discussion in the joint planning sessions
participated in by both the Whitings. The decision to sell her Dow shares in the
fall of 1973 was participated in by appellant, and his exercise of option was
discussed within the framework of her sales. Impressive as evidence of joint
control is also Mrs. Whiting's loan of the wherewithal for Mr. Whiting's
exercise of his option. The sales and purchase (through exercise of the option)
were part of the same plan and executed within six months of each other.

34

In these circumstances we hold that, while actual control may make a director
or a ten percent owner a "beneficial owner" of another's shares, see Blau v.
Mission Corp., 212 F.2d 77, 80 (2 Cir.), Cert. denied, 347 U.S. 1016, 74 S.Ct.

872, 98 L.Ed. 1138 (1954); Feder v. Martin Marietta Corp., 406 F.2d 260, 26366 (2 Cir. 1969), Cert. denied, 396 U.S. 1036, 90 S.Ct. 678, 24 L.Ed.2d 681
(1970), it is not necessary that the control be exclusive.
35

In so interpreting "beneficial owner" we are not "adding" to the prophylactic

effect Congress itself clearly prescribed in 16(b). See Blau v. Lehman, supra,
368 U.S. at 414, 82 S.Ct. at 457. Prophylaxis is meant to prevent rather than to
cure what has already happened.

36

If, then, appellant is "the beneficial owner" of his wife's securities of the issuer
for 16(b) purposes, how does one interpret the statutory language of 16(b)
"any profit realized by Him " (emphasis added).

37

If we hold that he is a "beneficial owner" he must be chargeable with all the

profits or none, in the absence of a way to measure benefit. Cf. Blau v. Lehman,
supra, 286 F.2d at 791. It is fiction, of course, to say that he will get all the
profit for himself, but here the prophylaxis comes in. The whole profit is "his"
profit, "realized by him" because the shares are "his" by the statutory
"beneficial owner" concept as applied, and because he is a person in a position
to obtain inside information.

38

This may be a case where innocents were trapped by the statute and its gloss.
See Keller Industries, Inc. v. Walden, 462 F.2d 388 (5 Cir. 1972). If Mr.
Whiting had not exercised his option until June 1974, just before it expired, he
would have incurred no 16(b) liability, for the six months from the time of
Mrs. Whiting's last sale in November 1973 would have expired. But the threat
of a new tax bill in 1974 apparently made him exercise the option in 1973. The
path of this harsh statute is strewn with such possibly innocent victims. But to
allow immunity here would open the door to patent abuse which Congress
sought to prevent by a catch-all type of statute, at least where the purchase and
sale aspects of the transaction are not subject to dispute.14

39

The judgment is affirmed.

Of the U.S. Court of Appeals for the Third Circuit, sitting by designation

Securities Exchange Act 16(b), 15 U.S.C. 78p(b), provides, in pertinent

part:
"(b) For the purpose of preventing the unfair use of information which may

have been obtained by such beneficial owner, director, or officer by reason of

his relationship to the issuer, any profit realized by him from any purchase and
sale, or any sale and purchase, of any equity security of such issuer (other than
an exempted security) within any period of less than six months, unless such
security was acquired in good faith in connection with a debt previously
contracted, shall inure to and be recoverable by the issuer, irrespective of any
intention on the part of such beneficial owner, director, or officer in entering
into such transaction of holding the security purchased or of not repurchasing
the security sold for a period exceeding six months."
2

Securities Exchange Act 16(a), 15 U.S.C. 78p(a), provides:

"(a) Every person who is directly or indirectly the beneficial owner of more
than 10 per centum of any class of any equity security (other than an exempted
security) which is registered pursuant to section 78L of this title, or who is a
director or an officer of the issuer of such security, shall file, at the time of the
registration of such security on a national securities exchange or by the
effective date of a registration statement filed pursuant to section 78L (g) of this
title, or within ten days after he becomes such beneficial owner, director, or
officer, a statement with the Commission . . . of the amount of all equity
securities of such issuer of which he is the beneficial owner, and within ten
days after the close of each calendar month thereafter, if there has been a
change in such ownership during such month, shall file with the Commission . .
. a statement indicating his ownership at the close of the calendar month and
such changes in his ownership as have occurred during such calendar month."
See also SEC Rule 16a-1, 17 C.F.R. 240.16a-1.
SEC Securities Exchange Act Release No. 7793 (Jan. 19, 1966), as amended by
Release No. 7824 (Feb. 14, 1966), requires insiders to include in such reports
information concerning securities held by their family members. The impact of
these rules and the Whitings' filings is discussed in greater detail below.

SEC Rule 16a-3, 17 C.F.R. 240.16a-3, provides:

"Any person filing a statement may expressly declare therein that the filing of
such statement shall not be construed as an admission that such person is, for
the purpose of section 16 of the act, the beneficial owner of any equity
securities covered by the statement."

SEC Rule 144, 17 C.F.R. 230.144, effective April 15, 1972, requires that
certain sales by "control" persons be reported to the SEC in advance. Mr.
Whiting is such a person by virtue of his position as a Dow director, as is Mrs.
Whiting by virtue of 230.144(a)(2)(i), which includes "any relative or spouse"

in the definition of those covered by these special reporting requirements. We

do not suggest that such reporting is conclusive, see Chemical Fund, Inc. v.
Xerox Corp., 377 F.2d 107, 111 (2 Cir. 1967); Levy v. Seaton, 358 F.Supp. 1, 4
(S.D.N.Y.1973); but it has some bearing on the consciousness of the person
filing that she and her spouse had better look to possible liability under 16(b)
5

She actually sold about 15% Of her Dow holdings in the calendar year 1973

In B. T. Babbitt, Inc. v. Lachner, 332 F.2d 255 (2 Cir. 1964), the parties
stipulated that transactions made by the spouse should be attributed to the
insider. In Jefferson Lake Sulphur Co. v. Walet, 104 F.Supp. 20 (E.D.La.1952),
Aff'd, 202 F.2d 433 (5 Cir.), Cert. denied, 346 U.S. 820, 74 S.Ct. 35, 98 L.Ed.
346 (1953), the court held the insider liable for all profits realized on a shortswing sale of stock purchased and controlled by him, rejecting the insider's
argument that his wife was deemed the "owner" of one-half of the profits under
a state community property law
In Marquette Cement Mfg. Co. v. Andreas, 239 F.Supp. 962 (S.D.N.Y.1965),
the claim was that an insider realized 16(b) profits as a result of short-swing
transactions by a number of family trusts. The court held the insider liable for
the transactions by the trust of which he was a beneficiary, but Not liable for
transactions by the trust of which his wife was beneficiary. The court noted,
however, that the insider's wife had "recognizably different interests" from the
insider because they were separated at the time of the transactions at issue and
divorced shortly thereafter. 239 F.Supp. at 967. That is not the situation here,
and the court's analysis gives us no further help in resolving the issue presented
on these facts.

While in 16(b), the liability section, the term "beneficial owner" apparently
refers to a 10% Owner as distinguished from a director or officer, and there is
no further reference in that subsection to "beneficial owner" as an equitable
owner, as well as a 10% Owner, we read "such beneficial owner" to include
both meanings

Although we have recently said that "(f)or the purposes of 16(b) . . . an

'insider' is one who is required to report his transactions under 16(a)," Lewis
v. Varnes, supra, 505 F.2d at 788, the statement was simply a prelude to a
finding of the negative that the director there involved was Not required to
report the particular transaction. But see Feder v. Martin Marietta Corp., 406
F.2d 260, 267-69 (2 Cir. 1969), Cert. denied, 396 U.S. 1036, 90 S.Ct. 678, 24
L.Ed.2d 681 (1970). A definition of "beneficial ownership" may be broad
enough to require reporting for purposes of public exposure but too broad for
the imposition of liability under 16(b), as the Commission itself has said. See

SEC Securities Exchange Act Release No. 4801 (Feb. 20, 1953)
9

See Shreve, Beneficial Ownership of Securities Held by Family Members, 22

Bus.Law. 431 (1967)

10

SEC Securities Exchange Act Release No. 7793 provides in pertinent part:
"The Securities and Exchange Commission is publishing this release to restate
and clarify the meaning of 'beneficial ownership of securities' under the
securities acts administered by the Commission as such term relates to the
beneficial ownership of securities held in the name of family members.
"Although the discussion below relates to the reporting of beneficial ownership
of securities under Section 16(a) of the Securities Exchange Act of 1934
(Exchange Act), it should be noted that generally the same principles apply to
disclosing beneficial ownership in registration statements, annual reports, proxy
statements, applications for registration as a broker-dealer or as an investment
adviser, and statements of eligibility and qualification to act as indenture trustee
under the securities acts where such disclosure is required.
"Section 16(a) of the Exchange Act requires every person owning beneficially,
directly or indirectly, more than 10% Of a class of equity security registered on
a national securities exchange or registered pursuant to new Section 12(g) of
the Act, or who is a director or an officer of the issuer of such security, to file
an initial report disclosing the amount of each class of the issuer's equity
securities, whether or not registered, which are beneficially owned by such
person at the time the issuer's securities become registered, or at the time a
person becomes such a director, officer or beneficial owner after registration.
Thereafter, each such person must report any change in his beneficial
ownership of the issuer's equity securities within 10 days after the end of each
calendar month during which any change occurs. Persons required to file
reports under Section 16(a) are also subject to Section 16(b) and (c) of the Act.
"Thus, the determination of whether a person is the beneficial owner of
securities held in the name of his spouse, minor children or other relatives is
significant in deciding whether such securities should be included in the reports
filed by officers, directors and beneficial owners pursuant to Section 16(a). It is
also significant in determining whether a person is subject to Section 16 as the
beneficial owner of more than 10% Of a class of registered equity security.
"Generally a person is regarded as the beneficial owner of securities held in the
name of his or her spouse and their minor children. Absent special
circumstances such relationship ordinarily results in such person obtaining
benefits substantially equivalent to ownership, e. g., application of the income

derived from such securities to maintain a common home, to meet expenses

which such person otherwise would meet from other sources, or the ability to
exercise a controlling influence over the purchase, sale, or voting of such
securities. Accordingly, a person ordinarily should include in his reports filed
pursuant to Section 16(a) securities held in the name of a spouse or minor
children as being beneficially owned by him." (Footnotes omitted).
11

If the wife's shares owned independently do not contribute in any way to the
husband's well-being, he can hardly be a "beneficial owner" under 16(b). He
would be liable only if it was proved that he had actually given his wife inside
information

12

As the court said in Bershad v. McDonough, 428 F.2d 693, 696 (7 Cir. 1970),
Cert. denied, 400 U.S. 992, 91 S.Ct. 458, 27 L.Ed.2d 440 (1971): "He (the
insider) was deemed capable of structuring his dealings to avoid any possibility
of taint and therefore must bear the risks of any inadvertent miscalculation."

13

Appellant conceded in his deposition that he had had discussions with

Freedman (the Whitings' former investment advisor) and Rickabaugh (of Smith
Barney) to assure that timing of sales of stock in Mrs. Whiting's name would
not be within a six-month period of any transactions for her account or his
account. Mr. Rickabaugh testified that he told appellant in 1972 that "he was a
control person by the fact that he was a director of Dow Chemical Corporation
and we took the view that his wife was also a control person because of that
fact."

14

"The same considerations apply to the families or close associates of officers

and directors(,) who are often presumed to have preferential access to
information. As far as the public is concerned, these also are insiders. And
while this assumption may be unjustified in many cases, it is a fact of life
which those in positions of leadership and responsibility cannot ignore."
N.Y. Stock Exch., The Corporate Director and the Investing Public 13-14
(1965).