10 180 (emphasis added) (citing Chiarella v. United States, 445 U.S. 222, 228 (1980)). See Chiarella, 445 U.S. at 230 (liability for nondisclosure “is premised upon a duty to disclose arising from a relationship of trust and confidence between the parties to a transaction.”) (emphasis added); id. at 233 (“Formulation of such a broad duty, which departs radically from the established doctrine that duty arises from a specific relationship between two parties, should not be undertaken absent some explicit evidence of congressional intent”) (emphasis added). Unlike “scheme” liability, a duty to disclose is individual, not derivative, and provides an objective, workable, brightline standard that looks at the relationship between the parties rather than the defendant’s subjective intent. See, e.g., id. at 232-33 (“No duty could arise from petitioner’s relationship with the sellers of the target company’s securities, for petitioner had no prior dealings with them. He was not their agent, he was not a fiduciary, he was not a person in whom the sellers had placed their trust and confidence. He was, in fact, a complete stranger . . . [to] the sellers.”). Duty to disclose is a legal question, and there is well-developed law to guide businesses concerning when such a duty exists. Id. at 227 (duty to disclose standard “is not a novel twist of the law”). Petitioner and its amici incorrectly argue that there is no requirement of a duty to disclose when a non-speaking defendant engages in affirmative “conduct.” Pet. Br. at 28; Brief of Change to Win & the CtW Inv. Group (“CTW Br.”), at 16, 18-23; Brief of N. Am. Sec. Adm’rs Ass’n, Inc. (“NASAA Br.”), at 13-17 & n.2. This argument has already been rejected by Central Bank and this Court’s insider trading cases. In Central Bank, the Tenth Circuit had held that “the lack of a duty to disclose is not dispositive in this case.” First Interstate Bank of Denver, N.A. v. Pring, 969 F.2d 891, 901 (10th Cir. 1992). The plaintiffs in Central Bank argued to this Court that the defendant could be liable without “a
