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interest or for the protection of investors." 15 U.S.C. § 78j(b). In furtherance of this grant of authority, the Securities and Exchange Commission promulgated Rule 10b-5 which prohibits any person from "directly or indirectly ... employ[ing] any device, scheme, or artifice to defraud" or "engag[ing] in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of a security." 17 C.F.R. § 240.10b-5(a) and (c). Rule 10b-5 is "coextensive with the coverage of § 10(b)." S.E.C.v. Zandford, 535 U.S. 813, 816 n.1 (2002); see also United States v. O’Hagan, 521 U.S. at 651; Ernst & Ernst v. Hochfelder, 425 U.S. at 214.
Section 10(b) and Rule 10b-5(a) and (c) prohibit conduct beyond making false statements and misleading omissions. The Court has described as examples of prohibited conduct projects, schemes, stratagems, artifices, plans, practices, conduct, and acts. Ernst & Ernst v. Hochfelder, 425 U.S. at 199 n. 20; Santa Fe Indus., Inc. v. Green, 430 U.S. 462,475476 (1977); United States v. O’Hagan, 521 U.S. 642, 659 (1997).
Rule 10b-5(b) explicitly prohibits the making of an untrue statement or material omission while Rule 10b-5(a) and (c) apply to conduct other than making an untrue statement or material omission. "To be sure, the second subparagraph of the rule specifies the making of an untrue statement of a material fact and the omission to state a material fact. The first and third subparagraphs are not so restricted." Affiliated Ute Citizens v. United States, 406 U.S. 128, 152-53 (1972). The Court noted that Section 10b-5’s "proscriptions, by statute and rule, are broad and, by repeated
