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In the Courts
Fourth Circuit Limits Supreme Court's Janus Holding to Private Causes of Action
A recent decision by the U.S. Court of Appeals for the Fourth Circuit held that a 2011 U.S. Supreme Court decision limiting the scope of liability for making false and misleading statements under Section 10(b) of the Securities and Exchange Act and SEC Rule 10b-5 was not applicable to criminal prosecutions.
In Janus Capital Group Inc. v. First Derivative Traders, the Supreme Court limited the “maker” of a false statement to the person or entity with “ultimate authority” over the content and communication of the statement for the purposes of private lawsuits under Section 10(b) of the Securities and Exchange Act and Rule 10b-5. Absent control, an individual or entity can only suggest what to say, not “make” a statement. The Court held in Janus that an investment adviser who had taken part in drafting an allegedly misleading prospectus for a client could not be held liable in a private cause of action because the client, not the investment adviser himself, filed the prospectus with the SEC.
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