Lorenzo v. Securities and Exchange Commission
U.S. Supreme Court · decided March 27, 2019 · Supreme Court Database (Spaeth)
- Decided
- March 27, 2019
- Term
- October Term 2018
- Vote
- 6–2
- Majority author
- Justice Breyer
- Issue area
- Economic Activity
- Disposition
- Affirmed
- Outcome
- Petitioning party lost
- Ideological direction
- Liberal
Opinion excerpt
Justice BREYER delivered the opinion of the Court. Securities and Exchange Commission Rule 10b-5 makes it unlawful: "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact ..., or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit ... in connection with the purchase or sale of any security." 17 C.F.R. § 240.10b-5 (2018). In Janus Capital Group, Inc. v. First Derivative Traders , 564 U.S. 135, 131 S.Ct. 2296, 180 L.Ed.2d 166 (2011), we examined the second of these provisions, Rule 10b-5(b), which forbids the "mak[ing]" of "any untrue statement of a material fact." We held that the "maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it." Id. , at 142, 131 S.Ct. 2296 (emphasis added). We said that "[w]ithout control, a person or entity can merely suggest what to say, not 'make' a statement in its own right." Ibid. And we illustrated our holding with an analogy: "[W]hen a speechwriter drafts a speech, the content is entirely within the control of the person who delivers it. And it is the speaker who takes credit-or blame-for what is ultimately said." Id., at 143, 131 S.Ct. 2296. On the facts of Janus , this meant that an investment adviser who had merely "participat[ed]…
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