John Olagues v. Ward Timken, Jr.
John Olagues v. Ward Timken, Jr.
Opinion
John Olagues is a self-proclaimed stock options expert, travelling the country to file claims under § 16(b) of the Securities and Exchange Act of 1934. Under § 16(b), a shareholder can bring an insider trading action to disgorge "short-swing" profits that an insider obtained improperly. But there is a catch. Although the shareholder can bring the lawsuit, any recovery goes only to the company. In other words, § 16(b) allows a shareholder to pursue claims on behalf of the company. This creates a problem for Olagues because he begins most of his lawsuits in the same way: without an attorney. And because a pro se plaintiff cannot represent the interests of a company, we affirm the district court's decision that Olagues cannot proceed pro se under § 16(b). But we remand to give Olagues the opportunity to retain counsel and file an amended complaint with counsel.
I.
This lawsuit dates from February 2015 when Ward Timken, Jr., president and CEO of TimkenSteel Corporation, exercised a stock option and transferred TimkenSteel stock that he owned back to the company. But less than six months later, Mr. Timken purchased TimkenSteel stocks on the open market. After discovering this transaction, Olagues contacted Mr. Timken and TimkenSteel asserting that Olagues was a shareholder and that, on behalf of TimkenSteel, he was seeking recovery of the short swing profits earned by Mr. Timken through his trading. 2 Mr. Timken and TimkenSteel informed Olagues that they would not make any payments to him personally.
Olagues then filed a complaint under § 16(b), alleging that Mr. Timken had engaged in short-swing trading by purchasing new TimkenSteel stock on the open market within six months of transferring his old stock to TimkenSteel. He sought $554,700 in damages-the profit Mr. Timken earned through the purportedly forbidden trade.
Mr. Timken and TimkenSteel moved to strike Olagues' complaint under Federal Rule of Civil Procedure 12(f). They argued that TimkenSteel was the real party in interest and that, as a pro se litigant, Olagues could not represent TimkenSteel's interests or those of other shareholders. The district court agreed-granting the motion to strike Olagues' complaint and dismissing the action. As the district court explained, Olagues, as a pro se litigant, could not pursue a § 16(b) claim on behalf of TimkenSteel because he would be representing the interests of the company.
Olagues then moved for reconsideration under Federal Rule of Civil Procedure 59(e), but the district court summarily denied the motion. On appeal, Olagues argues that § 16(b) provides for a private right of action and contains no textual requirement that a shareholder obtain counsel. We review de novo the district court's decision to dismiss the complaint.
See
Winget v. JP Morgan Chase Bank, NA
,
II.
This is not Olagues' first lawsuit. Instead, this action is one of Olagues' many § 16(b) lawsuits around the country. By defendants' count, this appears to be one of at least fourteen lawsuits that Olagues filed within just the last two years. But there is some confusion over whether Olagues can maintain these lawsuits pro se. Many district courts have dismissed Olagues' complaints with instructions to obtain counsel and file an amended complaint through counsel.
See, e.g.
,
Olagues v. Remondi
, No. 17-1004,
But other courts, including the Second Circuit, have considered the merits of Olagues' § 16(b) suits despite his pro se status.
See, e.g.
,
Olagues v. Perceptive Advisors LLC
,
III.
We have long recognized, under
We apply this rule for good reason. "The rule against non-lawyer representation protects the rights of those before the court by preventing an ill-equipped layperson from squandering the rights of the party he purports to represent."
Bass v. Leatherwood
,
IV.
Section 16(b) prohibits insiders, in some circumstances, from making short-swing profits. 15 U.S.C. § 78p(b) ;
Sterman v. Ferro Corp.
,
This is consistent with the Supreme Court's analysis in
Gollust v. Mendell
,
Thus, applying our general rule under § 1654, a plaintiff cannot proceed pro se under § 16(b) because he is representing the interests of a company. 3 The district court properly decided that Olagues cannot proceed pro se on behalf of TimkenSteel.
V.
Olagues also argues that the district court improperly struck his entire complaint under Federal Rule of Civil Procedure 12(f). He has a point. Rule 12(f) permits a court to "strike
from
a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f) (emphasis added). But Rule 12(f)"is neither an authorized nor proper way to procure the dismissal of all or a part of a complaint." 5C Wright & Miller, Fed. Prac. & Proc. § 1380 (3d ed. supp. 2018). That said, dismissal of the complaint is proper under the court's inherent power if Olagues refuses to obtain counsel and file an amended complaint with counsel.
See, e.g.
,
Moncrief
,
Remondi
,
Thus, we AFFIRM the district court's judgment that Olagues cannot proceed pro se and REMAND to the district court to give Olagues the opportunity to retain counsel.
To explain "short-swing" profits, picture this: an officer of a company "buys 100 shares at $5 in January and sells these same shares in February for $6, he or she would have made a profit of $100. [But] [b]ecause the shares were bought and sold within a six-month period, the officer would have to return the $100 to the company under the short-swing profit rule." See Investopedia, Short-Swing Profit Rule , https://www.investopedia.com/terms/s/shortswingprofitrule.asp (citing § 16(b) of the SEC Act) (last visited Oct. 24, 2018).
Olagues also questions whether he or TimkenSteel would have to pay attorney's fees under § 16(b) if he were represented by an attorney. Olagues does not explain this issue any more and, on appeal, "[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."
Conlin v. Mortg. Elec. Registration Sys., Inc.
,
Reference
- Full Case Name
- John A. OLAGUES, a Shareholder of TimkenSteel Corporation, Plaintiff-Appellant, v. Ward TIMKEN, Jr.; Timkensteel Corporation, Defendants-Appellees.
- Cited By
- 47 cases
- Status
- Published