GRIMES, HOOPER & MESSER, INC., a corporation, Appellant, v. Ed PIERCE, also known as Edward Pierce and as Edward Strauss, et al., Appellees

GRIMES, HOOPER & MESSER, INC., a corporation, Appellant, v. Ed PIERCE, also known as Edward Pierce and as Edward Strauss, et al., Appellees. No. 73-2165. United States Court of Appeals, Ninth Circuit. June 16, 1975. Michael R. Newman, Los Angeles, Cal. (argued), for appellant. Michael Zimmerman, Los Angeles, Cal. (argued), for appellee. Before WRIGHT and GOODWIN, Circuit Judges, and WOLLENBERG, District Judge. The Honorable Albert C. Wollenberg, United states District Judge for the Northern District of California, sitting by designation. [MAJORITY — PER CURIAM:] OPINION PER CURIAM: Plaintiff brokerage firm, having lost $64,000 as the result of an alleged swindle by Ed Pierce, a short-selling securities customer, sued Pierce, his associates, the bank, and its manager. Plaintiff claimed that the bank and the manager had violated § 10(b) of The Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 of The Securities and Exchange Commission, 17 C.F.R. § 240.10b-5, by permitting the brokers to believe that their mutual customer, Pierce, was a man of means and probity. The trial court exonerated the bank and its manager of 10b-5 liability, and the brokers appeal. We affirm. The plaintiffs’ theory was that the bank and its manager “aided and abetted” the alleged swindler in his scheme by unwittingly permitting Pierce to use his bank accounts and associations with bank officers to create a false aura of financial and moral responsibility which was essential to the fraudulent scheme and instrumental in causing plaintiffs’ loss. The district court correctly found that the bank’s dealings with Pierce and with the brokers did not render it liable under 10b-5. See White v. Abrams, 495 F.2d 724, 735-736 (9th Cir. 1974). Affirmed.