Rule 10b-5 Private Right of Action
Posted: Fri Apr 26, 2013 9:01 pm
Can anyone give me a definitive list of the elements (procedural requirements) that need to be met to bring a private right of action under 10b-5?
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are you sure there's duty to disclose for 10b-5? Not saying you're wrong, but I know duty to disclose was removed as an element for a lot of those.JusticeHarlan wrote:I think it works like this: the elements are fraud, in connection with the sale of securities. So some of the elements are just sub-elements of common law fraud. I'd probably organize it conceptually like this:
1. Fraud:
1a. Deceit or omission
1b. Duty to disclose/be truthful (more of an issue for omissions than outright lies)
1c. Scienter (Hochfelder; Tellabs for post-PSLRA)
1d. Materiality (Basic)
1e. Reliance (Basic for fraud on the market; Affiliated Ute for face-to-face)
1f. Loss Causation (Dura Pharmaceuticals)
1g. Damages
2. In Connection with (Texas Gulf Sulfur)
3. The sale of securities (Blue Chip Stamp)
JamMasterJ wrote:are you sure there's duty to disclose for 10b-5? Not saying you're wrong, but I know duty to disclose was removed as an element for a lot of those.
Yeah, this: the duty comes in for omission-based claims. You don't have a general duty to shout every piece of bad news about the corporation from the rooftops because not saying something generally won't be a violation. But if it's something you have to disclose in a 10-Q (or, more interestingly, an 8-K) and you don't, then it may be a violation. (IIRC, it also comes into play when you speak truthfully and positively on a subject but don't mention the related negatives. Once you open your mouth on topic, you've essentially created the duty to full and fair disclosure so as to avoid a misleading impression. Also, there's a circuit split on whether you have to update info that was true when you said it but isn't anymore; 7th says no duty, 2nd says there is a duty, according to my old outline.)sambeber wrote:I read it as having two flavors:
(1) misstatement: requires some speech + material falsity
(2) omission: requires silence + duty to speak/disclose
How do you deal with silence-based 10b-5 actions then?Mike12188 wrote:I think including "duty to disclose" as an element of a 10b-5 action is wrong and very confusing. 10b-5 itself is the duty.
"It is unlawful make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading"
The rule itself is a duty to make true statements - or non-misleading statements.
But when, and in what contexts, do you need to make true statements? Whenever anything important happens?Mike12188 wrote:The rule itself is a duty to make true statements
When you speak (unless of course its puffery) . I think there was a big misunderstanding on my part and I agree with you. I agree there is a duty to update, disclose - I just don't have them listed as separate elements, just that for example in the absence of a duty to update silence would not be fraudulent, so the first element of 10b-5 would not be met. Sorry for any confusion.JusticeHarlan wrote:But when, and in what contexts, do you need to make true statements? Whenever anything important happens?Mike12188 wrote:The rule itself is a duty to make true statements