13 (although investment bank employee was criminally convicted for § 10(b) insider trading because of breach of duty to his employer and its client, a tender offeror, shareholders in target company had no § 10(b) claim because “‘[t]here is no “duty in the air” to which any plaintiff can attach his claim.’”) (citation omitted); see also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 522 (1992) (plurality opinion) (citing Black’s Law Dictionary 1489 (6th ed. 1990) as “defining ‘tort’ as ‘always [involving] a violation of some duty owing to plaintiff’”) (emphasis added; alteration in original). Commercial counterparties do not have or breach any duty to the issuer’s investors. Any deception used or employed against those shareholders comes from the accounting of the issuer (which has a duty to disclose), not from the transaction of the counterparty (which does not). If Charter’s accounting had expensed rather than capitalized the increase in the prices for set-top boxes, there would be no alleged deception. A commercial counterparty has no relationship with the issuer’s investors and thus no duty to disclose. In those circumstances, there is no implied private civil liability under § 10(b). II. THE IMPLIED CAUSE OF ACTION UNDER § 10(b) SHOULD NOT BE EXTENDED TO ENCOMPASS “SCHEME” LIABILITY. The Petitioner’s question presented broadly asks whether Central Bank “forecloses claims under § 10(b)” and merely assumes that “Respondents engaged in their own deceptive conduct.” Pet. Br. at i. Indeed, Petitioner expressly asks the Court to decide whether “scheme” liability satisfies the elements of reliance and causation necessary for private civil claims under § 10(b). Id. at 37-40. The Court should address the broader question of whether “scheme” liability is a basis for primary liability under the § 10(b) implied cause of action, and not only whether a commercial counterparty’s participation in a commercial transaction could constitute
