dissenting:
The majority’s ruling departs from the unequivocal terms of the statute to be administered and from the prior case law of this Court applying the statute, and it conflicts with rulings of the other Circuits which have addressed the requirements of the statute, § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b).
A corporate merger during the pendency of this suit has sparked the judicial controversy presented to this Court.
Plaintiff was the owner of stock issued by International (Viacom International Inc.) at the time he filed this suit. He seeks to recover short-swing profits of beneficial owners of more than 10% of the stock of International. During the pendency of the suit, the plaintiff ceased being an owner of International stock as the result of a corporate merger. The defendants then moved, successfully, to dismiss the complaint. That dismissal is on appeal to this Court.
International had been organized as a wholly-owned subsidiary of CBS Inc. for the purpose of owning the television program distribution and cable television businesses of CBS. The CBS interest in International was distributed to the CBS stockholders on a pro rata basis. Some time later, Arsenal Holdings Inc. (“Holdings”) was organized for the purpose of acquiring International in a merger transaction which had a business purpose. A wholly-owned subsidiary of Holdings was merged with and into International, and, as a result of the merger, International remained a viable corporate entity- but became an indirect, wholly-owned subsidiary of Holdings. Holdings changed its name to Viacom, Inc. (“Viacom”). Each share of Viacom stock, including plaintiff’s stock, was converted into the right to receive (i) $43.20 and (ii) certain percentages of preferred and common stock of Viacom.1 Plaintiff accepted the conversion and received cash and Arsenal Holdings (now called “Viacom”) stock in the exchange.
Refined to simpler understanding of the implication of the corporate merger, it appears that the plaintiff ceased to be a shareholder of International; he had exchanged his holdings in the issuer, International, for cash and preferred and common stock of Arsenal Holdings Inc., which had become the 100% owner of International in the merger. Under the merger exchange the previously outstanding stock of International was cancelled, including plaintiff’s shares. In this state of affairs, under the explicit language of § 16(b), the right to bring a § 16(b) suit on behalf of International, the issuer, was limited to either International, the original issuer, or Viacom, its new sole stockholder.
Thus the grounds of difference between the majority of the Court and this dissent are that the plaintiff no longer satisfies the plain statutory requirement — ownership of securities of the issuer.
Prior to the holding of the majority herein, it was axiomatic that an “owner of any *733security of the issuer” must continue to be a stockholder of the issuer throughout a § 16(b) lawsuit. See Herrmann v. Steinberg, 812 F.2d 63, 67 n. 4 (2d Cir.1987) (“As a threshold matter ... plaintiffs must establish that they have been ... shareholders throughout this litigation.”); Rothenberg v. United Brands Co., [1977-78] Fed. Sec.L.Rep. (CCH) ¶ 96,045 at 91,691 (S.D.N.Y.) (“to continue to maintain a derivative action in the right of a corporation, plaintiff must have and maintain his standing throughout the litigation.”), aff'd mem., 573 F.2d 1295 (2d Cir.1977); Staffin v. Greenberg, 509 F.Supp. 825, 840 (E.D.Pa.1981) (“the law requires that to maintain a derivative action under section 16(b) a plaintiff must have and maintain his standing as a shareholder at the commencement of the law suit and throughout the litigation.”), aff'd on other grounds, 672 F.2d 1196 (3d Cir.1982) [Emphases supplied].
This Circuit as well as other circuits likewise have denied standing to sue to a § 16(b) plaintiff who has ceased his stock ownership in the issuer regardless of whether he voluntarily sold his interest or because he was cashed out in a merger transaction. See Rothenberg v. United Brands Co., [1977-78] Fed.Sec.L.Rep. at 91,692 (“Here, we hold only that the requirement of § 16(b) that the plaintiff be the owner of any security of the issuer is not satisfied where plaintiff loses his security owner status [by a statutory short form merger] and thus any proprietary interest in the issuer during the pendency of the action.”); Portnoy v. Kawecki Berylco Indus., 607 F.2d 765, 767 (7th Cir.1979) (“When the plaintiff filed his § 16(b) action, he was an owner of a security of the issuer (KBI). However, he lost that status five days later [when he was cashed out in a merger], and consequently, we are of the opinion that he lost the standing that he had as an owner of KBI stock.”).
Those holdings follow traditional rulings in other contexts. Once a plaintiff loses his status as the owner of stock in the issuer, the terminated ownership does not present a case or controversy for the exercise of judicial power; the claims by a terminated owner are not justiciable any longer. “The rule in federal cases is that an actual controversy must be extant at all stages ..., not merely at the time the complaint was filed.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). “[I]t is not enough that there may once have been a controversy at the time the suit was commenced if subsequent events have put an end to the controversy.” Prudent Publishing Co. v. Myron Mfg. Corp., 722 F.Supp. 17, 22 (S.D.N.Y.1989). For other cases that become moot in the course of litigation, see Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394 n. 3, 11 L.Ed.2d 347 (1964); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1936); Stokes v. Village of Wurtsboro, 818 F.2d 4 (2d Cir.1987).
The majority holding that a former security holder of the issuer who has been divested of his securities by a merger transaction during the pendency of a suit should continue to be qualified to sue is predicated on a perceived necessity to effectuate the statutory policy behind § 16(b). That policy has been described as “to protect the ‘outside’ stockholders against at least short-swing speculation by insiders with advance information.” Smolowe v. Delendo Corp., 136 F.2d 231, 235 (2d Cir.), cert. denied, 320 U.S. 751, 64 S.Ct. 56, 88 L.Ed. 446 (1943). This result has been urged on the Court by the SEC in its amicus curiae brief and would implement a rule, lately proposed by the SEC but never adopted, designed to invest a former stockholder with continued authority to sue. The proposed rule was floated by the SEC in 1988, revised in 1989, as a proposed definition of the term “owner.” See Ownership Reports and Trading by Officers, Directors and Principal Shareholders, 53 Fed.Reg. 49997 at 50013 (Dec. 13, 1988) (“To preserve Congress’ intent, the proposed rules would provide standing to the former public shareholders whose equity securities have been acquired in a business combination or similar corporate transaction over which the individual shareholder has no control.”); Ownership Re*734ports and Trading by Officers, Directors and Principal Security Holders, 54 Fed. Reg. 35667 at 35678 (Aug. 29, 1989) (“In response to comment received, the Commission reproposes a more limited definition. The revised proposed definition would extend standing only to former security holders who had filed suit before surrendering their securities.”).2
The majority of this Court, as well as the SEC, point to the fact that plaintiff is now a shareholder of the parent corporation, Viacom, as further support for the plain extension of the scope of the statute, citing Blau v. Oppenheim, 250 F.Supp. 881, 884 (S.D.N.Y.1966). Reliance on Blau, however, is misplaced; it was factually, materially, different. ■ In Blau, the issuer was merged out of existence, leading to the argument there made that if a successor was not permitted to sue under § 16(b) no other party would be available to vindicate the policy of the statute. 250 F.Supp. at 886. In the present case, however, ownership of the issuer passed to Viacom, and Viacom, as the sole shareholder of the issuer, remained in position, if need be, to vindicate the purpose of the statute to pursue recovery of short-swing profits of an insider.
The infirmity of Blau is highlighted by a careful study of the facts there presented; these were:
Oppenheim was a director of Van Winkle, a listed company, who engaged in short swing transactions and was thus subject to § 16(b) liability at the instance of security holders of Van Winkle. Plaintiff was not an owner of any security of Van Winkle at any time during its existence. Van Winkle was dissolved- in its merger into M & T Chemicals, Inc., and all its assets were transferred to M & T in exchange for stock in American Can Co. Blau thereafter bought stock in American Can which, by then, owned 100% of the stock of M & T. Blau sued Oppenheim as a director of Van Winkle under § 16(b) purporting to act as the “owner of any security of the issuer.” The District Judge sustained the claim of Blau, a stockholder of American Can, against Oppenheim for short-swing transactions in stock of Van Winkle on a theory that Van Winkle’s assets were now in M & T. However, American Can was the stockholder of M & T, not Blau, but this was passed over by the District Judge. To effectuate the conceived purpose of § 16(b), only American Can should have been accorded status to sue, not Blau. The decision of the District Judge was never reviewed or analyzed by appeal. The public policy arguments pressed in Blau could only be made by ignoring the obligatory statutory, requirement of stock ownership in the issuer. Blau granted standing to a non-owner, rather than to American Can itself, the sole holder of a security of the successor to Van Winkle.
Blau was mentioned by this Circuit and contrasted with Untermeyer v. Valhi, Inc., 665 F.Supp. 297 (S.D.N.Y.1987), aff'd mem., 841 F.2d 1117 (2d Cir.), aff'd on reh’g, 841 F.2d 25, 25 (2d Cir.) (“In Blau the issuer had been merged out of exist-ence_ [and] the short swing-profits illegally gained would never have been recovered. In contrast, the issuer here, Sea-Land, survived the merger and remains a viable corporate entity. Because Sea-Land remains a viable corporate entity, it or its shareholder, CSX [the parent], can bring an action under section 16(b) to recover the short-swing profits allegedly gained.”) (citations omitted), cert. denied, 488 U.S. 868, *735109 S.Ct. 175, 102 L.Ed.2d 145 (1988). That comment is directly apposite here.
Two other circuit courts which have addressed this issue have refused to extend the statutory qualification to former shareholders of the issuer either when the issuer remains a viable corporate entity, see Portnoy, 607 F.2d at 769 (7th Cir.1979), or when the issuer was merged out of existence. See Lewis v. McAdam, 762 F.2d 800, 804 (9th Cir.1985) (per curiam) (“We hold that where a corporation is merged out of existence by the wholly owned subsidiary of another corporation, the parent corporation is not an ‘issuer’ within the meaning of section 16(b). Similarly, a shareholder of the parent corporation cannot be considered an ‘owner of any security of the issuer’ and accordingly lacks standing to bring a section 16(b) action.”).
The SEC itself recognizes that qualifying former shareholders to sue, either judicially or by rule-making, is a marked departure from the pre-existing jurisprudence under § 16(b). See 53 Fed.Reg. at 50013 (“Currently, the plaintiff is required to hold these shares [in the issuer] throughout the legal process.”) (citing Portnoy, supra.); Id. (“Where the issuer continues to exist as a wholly-owned subsidiary, ... the courts have uniformly denied standing to former shareholders and shareholders of the parent.”) (citing Untermeyer, infra; Lewis, supra; Portnoy, supra.).
It is a frequently stated principle of statutory construction that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. See National Railroad Passenger Corp. v. National Assoc. of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). “When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” Botany Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 131-32, 73 L.Ed. 379 (1929). In short, the remedies created in § 16(b) are the exclusive means to enforce the obligation imposed by the Act. Nat’l Railroad Passenger Corp., 414 U.S. at 458, 94 S.Ct. at 693.
Congress simply has not delegated to the courts the authority to qualify a “former” owner as an “owner of any security of the issuer.” While I agree with the statement in Blau, 250 F.Supp. at 884, that “[t]he courts, particularly in our circuit, have consistently interpreted section 16(b) in ‘the broadest possible' terms in order not to defeat its avowed objective,” the case authorities have also taught that: “We have no constitutional authority to rewrite a statute simply because we may determine that it is susceptible of improvement.” Lewis v. McAdam, 762 F.2d 800, 804 (9th Cir.1985) (citing Badaracco v. Commissioner, 464 U.S. 386, 398, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984)); see also, Badaracco, 464 U.S. at 401, 104 S.Ct. at 764-65 (“If the result contended for by petitioner is to be the rule, Congress must make it so in clear and unmistakable language.”); TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117 (1978) (“Our individual appraisal of the wisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting the statute.”); Blau v. Lehman, 368 U.S. 403, 413, 82 S.Ct. 451, 457, 7 L.Ed.2d 403 (1962) (“Congress is the proper agency to change an interpretation of the [1934] Act unbroken since its passage, if the change is to be made.”); Untermeyer v. Valhi, 665 F.Supp. 297, 300 (S.D.N.Y.1987) (“the statutory language may not be strained or distorted to add to the ‘prophylactic’ effect Congress itself clearly prescribed in § 16(b)”), aff'd mem., 841 F.2d 1117 (2d Cir.), aff'd on reh’g, 841 F.2d 25 (2d Cir.), cert. denied, 488 U.S. 868, 109 S.Ct. 175, 102 L.Ed.2d 145 (1988).
The statute unambiguously states that “the owner of any security of the issuer” may sue to recover short-swing profits that are recoverable by the issuer under § 16(b). There is simply no indication in any of the legislative history of § 16(b) that the plain meaning of the words “owner of any security of the issuer” was meant to include or even could include one who is no longer the owner of any security of the issuer. Nor is there anything in the legislative history from which to believe “that the plain meaning of the statutory language is inadequate *736to effect the congressional purpose of providing an enforcement mechanism against insider trading. That a merger may result in a corporation succeeding to an action formerly held by an individual is a consequence dictated by the statute.” Lewis, 762 F.2d at 804. Certainly, Congress has had ample opportunity to amend § 16(b) had it so desired.3
Further, the narrow private cause of action granted by § 16(b) militates strongly against our attributing to Congress a willingness to allow a more expansive enforcement of the statute. The remedy encompasses not former stockholders of the issuer but only stockholders. As did the Seventh Circuit, we should “reject the plaintiff’s invitation to draft ‘judicial legislation’ to grant him standing.” Portnoy, 607 F.2d at 768.
Accordingly, I would affirm the order and judgment appealed from.
. Excluded from the conversion were dissenting shares and shares held by Viacom, by International, or by a subsidiary of Viacom.
. Certainly, the proposed rules do not govern this case, see Mayer v. Chesapeake Ins. Co., 877 F.2d 1154, 1162 (2d Cir.1989) ("[t]hough the Commission has recently proposed a new rule ... which would extend § 16(b) liability ..., thereby changing existing law, ... the proposed rule does not govern the present case."), cert. denied, — U.S.-, 110 S.Ct. 722, 107 L.Ed.2d 741 (1990), although the majority urges that they be given persuasive weight. See Basic Inc. v. Levinson, 485 U.S. 224, 239 n. 16, 108 S.Ct. 978, 987 n. 16, 99 L.Ed.2d 194 (1988) ("The SEC’s insights [regarding the materiality standard under Rule 10b — 5] are helpful, and we accord them due deference.”). In Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 41 n. 27, 97 S.Ct. 926, 949 n. 27, 51 L.Ed.2d 124 (1977), the Supreme Court observed, however, that “[the SEC’s] presumed ‘expertise’ in the securities-law field is of limited value when the narrow legal issue is one peculiarly reserved for judicial resolution, namely whether a cause of action should be implied by judicial interpretation in favor of a particular class of litigants."
. Several times in the past decade or so Congress has legislated amendments to the 1934 Act. See e.g., Insider Trading and Securities Fraud Enforcement Act of 1988, Pub.L. No. 100-704, 102 Stat. 4677 (1988); Shareholder Communications Act of 1985, Pub.L. No. 99-222, 99 Stat. 1737 (1985); Insider Trading Sanctions Act of 1984, Pub.L. No. 98-376, 98 Stat. 1264 (1984); Foreign Corrupt Practices Act of 1977, Pub.L. No. 95-213, 91 Stat. 1494 (1977); Domestic & Foreign Investment Improved Disclosure Act of 1977, Pub.L. No. 95-213, 91 Stat. 1498 (1977).