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Section 10(b) and Rule 10b-5 liability is not confined to those responsible for misstatements or omissions.
To succeed in a Rule 10b-5 suit, a private plaintiff must show that the defendant used, in connection with the purchase or sale of a security, one of the four kinds of manipulative or deceptive devices to which the Rule refers, and must also satisfy certain other requirements not at issue here.
532 U.S. at 593.
S.E.C.v. Zandford also makes plain that Section 10(b) and Rule 10b-5 liability may be violated by conduct alone, without any misstatement or omission by the defendant. 535 U.S. at 821 ("each time respondent 'exercised his power of disposition for his own benefit,' that conduct, 'without more,' was a fraud.") (quoting United States v. Dunn, 268 U.S. 121, 131 (1925)).
The Eighth Circuit’s circumscription of Section 10(b) and Rule 10b-5 is contrary to the language of the statute and rule and contrary to the Court’s decisions.
THE EIGHTH CIRCUIT’S INTERPRETATION IS CONTRARY TO THAT OF THE SECURITIES AND EXCHANGE COMMISSION
In the In re Homestore.com Securities Litigation, the Securities and Exchange Commission filed briefs as Amicus Curiae in support of the position of CalSTRS concerning the scope of liability under Rule 10b-5(a) and (c). This brief is available at www.sec.gov/litigation/briefs/homestore_102104.pdf. In its brief, the Securities and
