Prosecuting Securities Fraud Under Section 17(a)(2)

26 Pages Posted: 25 Feb 2019 Last revised: 6 Jun 2019

Date Written: February 8, 2019


Traditionally, securities fraud has been civilly enforced and criminally prosecuted under Section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder. Recently, however, the Securities and Exchange Commission has increasingly asserted claims under Section 17(a)(2) of the Securities Act for conduct that sounds in securities fraud, and criminal securities fraud prosecutions could follow this trend. Yet, although the elements of Section 10(b) and Rule 10b-5 violations have been well-developed by the courts, many of the elements of Section 17(a)(2) violations remain unsettled. This essay seeks to define the elements of the crime of violating Section 17(a)(2); compares and contrasts those elements to the crime of violating Rule 10b-5; and considers the policy implications of prosecuting securities fraud under Section 17(a)(2) rather than Rule 10b-5.

Keywords: Securities Regulation, Securities Litigation, Securities Fraud, White Collar Crime

Suggested Citation

Couture, Wendy Gerwick, Prosecuting Securities Fraud Under Section 17(a)(2) (February 8, 2019). Loyola University Chicago Law Journal, Vol. 50, p. 669, 2019, Available at SSRN:

Wendy Gerwick Couture (Contact Author)

University of Idaho College of Law ( email )

501 W. Front St.
Boise, ID 83702-7232
United States
208-364-4547 (Phone)


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