Brief of Law and Business Professors as Amici Curiae in Support of Respondents, MacQuarie Infrastructure v. Moab Partners, No. 22-1165, Dec. 20, 2023

Abstract

Omissions of disclosure required by the Securities and Exchange Commission (SEC or Commission) in Item 303 of Regulation S-K can be a basis for an action under Section 10(b) of the Securities Exchange Act of 1934 (Exchange Act). Disclosures mandated by the SEC in periodic reports are not optional. That these obligations can create a “duty” to disclose under Rule 10b-5(b) is consistent with congressional intent, state court opinions, the common law, and with the longstanding understanding of the federal securities laws (including those of legal scholars and the SEC). This case does not, therefore, seek to “impermissibly expand” the private right of action for securities fraud, but instead to reaffirm the availability of an action that has long existed.

Keywords: "federal securities laws" fraud "duty to disclose" "rule 10b-5" "Section 11" Securities Act of 1933" "Securities Exchange Act of 1934" "public company" "Regulation S-K" Item 303" trends "management's discussion and analysis" "periodic reports" "integrated disclosure"