The Supreme Court’s Janus Capital Case
Norman S. Poser
Brooklyn Law School
October 19, 2011
The Review of Securities & Commodities Regulation, Vol. 44, p. 205, 2011
Brooklyn Law School Legal Studies Paper No. 252
In Janus Capital Group, Inc. v. First Derivative Traders, a divided Supreme Court created the unprecedented doctrine that the investment adviser to a mutual fund that drafted and distributed a false prospectus for the fund did not “make” a false statement under Rule 10b-5 because the fund, and not the adviser, had “ultimate authority” over the prospectus. The author argues that the decision was out of touch with reality because it failed to give proper consideration to the unique structure of the mutual fund industry. Furthermore, the decision is an illustration of judicial activism, and is likely to protect fund advisers and other corporate officials from liability for their own fraudulent actions.
Number of Pages in PDF File: 6
Keywords: Rule 10b-5, Securities fraud, Mutual funds
Date posted: October 20, 2011
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