The Make Believe of Janus - A Brief Case Comment Examining Janus Capital Group, Inc. v. First Derivative Traders
New York State Bar Assoc. Securities Litigation and Arbitration, Forthcoming
12 Pages Posted: 13 Oct 2011 Last revised: 11 Apr 2012
Date Written: October 12, 2011
Rule 10b-5 prohibits 'making any untrue statement of a material fact' in connection with the purchase or sale of securities. The critical question considered by the Janus Court was how the term 'make' in Rule 10b-5 should be construed. The SEC contended that 'make' is synonymous with 'create,' which would allow it (and private plaintiffs) to assert a claim against one who provides false or misleading material information to another, who later includes it in a statement. However, the Court rejected this definition and found the phrase at issue in Rule 10b-5, 'to make . . . any statement,' to be the approximate equivalent of 'to state.'
Keywords: SEC, 10b-5, Janus, Supreme Court, speech, first amendment, libel, Lanham Act, Dodd-Frank, false advertising, securities, DMCA 512, CDA 230, Pekarek
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