9 C. Deceptive Conduct By A Commercial Counterparty Requires A Duty To Disclose. As we have shown, “scheme” liability attempts to hold one defendant that did not speak to investors, often a commercial counterparty, liable for the issuer’s misstatement. Supra, at 45. A well-developed body of law already exists, however, under which a defendant who engages in conduct, but neither makes a false or misleading statement to the market nor engages in market manipulation, can be sued for conduct “only where [a] duty to disclose arises from [a] specific relationship between two parties.” Central Bank, 511 U.S. at costs from misunderstood investor protection.”); Astrid Maier, German Companies Threatened By New Risks in the United States, Fin. Times Deutchland, June 8, 2007, at 10m (“there will be a whole new door opened for damages actions” that “‘would mean that each and every engagement must be thoroughly examined’ . . . In particular small and medium sized companies would be burdened with significant legal costs”); Interim Report of the Committee on Capital Markets Regulation 11, 71 (Nov. 30, 2006) (“Interim Report”) (“Foreign companies commonly cite the U.S. class action enforcement system as the most important reason why they do not want to list in the U.S. market.”); Michael Bloomberg & Charles Schumer, Sustaining New York’s and the US’ Global Financial Services Leadership ii (Jan. 2007) (“the legal environments in other nations, including Great Britain, far more effectively discourage frivolous litigation” while “the prevalence of meritless securities lawsuits and settlements in the U.S. has driven up the apparent and actual cost of business—and driven away potential investors”); Jonathan Macey, What Sarbox Wrought, Wall St. J., Apr. 7, 2007, at A9 (“All of a sudden it is no longer fashionable to be a U.S. public company: It’s for suckers who can’t access the piles of sophisticated ‘global’ capital available elsewhere. . . . If the U.S. is to regain its former position in the world capital market, much more will have to be done. Massive litigation risk remains . . . .”) Ian Swanson, Foreign Executives Press For Reform Of Litigation in United States, The Hill, May 17, 2007, at 11; (“litigation is a greater disincentive to doing business in the U.S. than fears that a protectionist Congress might impose new barriers to foreign trade and investment”); Alan Beattie, London Named Top Financial Centre, Fin. Times, June 12, 2007, at 6 (the United States has been disadvantaged because of its “litigious and apparently arbitrary culture of regulation and policy”).
