14 “deceptive” conduct in the abstract. Rejection of the broader argument is vital to the competitiveness of American businesses. See supra, at 6-8. Central Bank itself addressed reliance, which is an element of only the implied cause of action. See 511 U.S. at 180.7 Of course, if the statutory language precludes “scheme” liability, that is the end of the matter. But when the statutory language is not dispositive, the Court should limit the implied § 10(b) action to ensure that this “judicial oak” does not grow even further afield from the “legislative acorn.” Blue Chip, 421 U.S. at 737; see also Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1102 (1991) (“the breadth of the [implied private] right once recognized should not, as a general matter, grow beyond the scope congressionally intended”).8 As Blue Chip held: “We are dealing with a private cause of action which has been judicially found to exist, and which will have to be judicially delimited . . . .” 421 U.S. at 749. Thus, even assuming that the SEC or Justice Department could bring a claim that a “sham” transaction by a commercial counterparty was a “deceptive” act, § 10(b) has no language suggesting that private plaintiffs could sue that commercial counterparty. Id. (“No language in either of [§ 10(b) or Rule 10b-5] speaks at all to the contours of a private cause of action . . . .”); see Lampf, Pleva, Lipkin, Prupis & Pettigrow v. Gilbertson, 501 U.S. 350, 359 (1991) (“We have made no pretense that it was Congress’s design to provide the remedy afforded.”). 7
The reliance holding in Central Bank reflects “a longstanding limitation on private § 10(b) suits” that does not apply to “criminal liability.” O’Hagan, 521 U.S. at 664. Similarly, reliance need not be proven in SEC administrative actions under § 10(b). See, e.g., SEC v. Credit Bancorp, Ltd., 195 F. Supp. 2d 475, 490-91 (S.D.N.Y. 2002). 8
Cf. 501 U.S. at 1110 (Scalia, J., concurring) (when “the federal cause of action at issue here was never enacted by Congress . . . the more narrow we make it (within the bounds of rationality) the more faithful we are to our task”) (citation omitted).
