Monday, July 07, 2014

SEC Amicus Urges Supreme Court to Give 1933 Act Section 11 the Broad Reach Congress Intended

In a Supreme Court case involving the contours of liability under Section 11 of the Securities Act, the SEC filed an amicus brief  contending that a  statement of opinion is actionable under Section  11  if it lacked a basis that was reasonable under the circumstances, even if it was sincerely held. The Commission rejected the assertion that  a statement of opinion is actionable under Section 11 only if it is not sincerely held, on the theory that the only fact expressly stated by the opinion is that the speaker holds that opinion.  The SEC said that this view overlooks that Section 11 applies to both misstatements and omissions. Section 11 creates an express cause of action for a registration statement that contained an untrue statement of material fact or omitted to state a material fact necessary to make the statements not misleading.  Omnicare, Inc. v. Laborers District Council Construction Industry Pension  Fund, Dkt. No. 13-435.

The Court took the case on appeal from the Sixth Circuit to answer the question of whether in a Section 11 action a plaintiff who seeks to impose liability for a statement of opinion in a registration statement  and who alleges that the opinion lacks a reasonable basis must also allege that the maker of the statement did not subjectively hold that opinion. The SEC said that, since an opinion can be misleading either because it is insincere or because it lacks foundation, the Sixth Circuit correctly held that a Section 11 plaintiff need not allege that the defendant disbelieved the opinion. But, continued the SEC, the appeals court erred in suggesting that a statement of opinion is actionable whenever it is ultimately proved incorrect.  Section 11 liability should be determined based on the facts at the time  the statement was made, said the Commission, not at a later time.

The SEC asserted that imposing Section 11 liability for statements of opinion that are not genuinely held or lack a reasonable basis furthers Congressional intent and fulfills the purposes of the Securities Act, which focuses on disclosure to investors.  The registration statement plays a foundational role, continued amicus, it must be filed before any security can be sold and, if it contains any material misrepresentations or omissions, the SEC may prevent the sale of the security and a purchaser of the security may sue for damages.

In enacting Section 11, Congress built on common law principles to create a far-reaching cause of action under which liability could be imposed for misstatements and omissions. Congress dispensed with  proof of scienter,  reliance,  and causation and allowed only limited affirmative defenses once it was established that a registration included a material misstatement or omission.  In the SEC’s view, the imposition of liability for a statement of opinion that is not genuine  or that lacks a reasonable basis is consistent with this scheme because it ensures that registration statements are both literally true and do not omit information that would matter to a reasonable investor. The Commission has consistently recognized  that a genuinely held statement of opinion may be materially misleading when it lacks a reasonable basis.

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