Page:Amicus brief - Stoneridge v Scientific-Atlanta - California State Teachers’ Retirement System.pdf/16

 use of the word ’any’, are obviously meant to be inclusive." Id. at 151.

The same analysis has been applied to Section 17(a) of the Securities Act of 1933 (15 U.S.C. § 77q(a)), which has analogous language to Rule 10b-5 and uses the disjunctive "or." In analyzing Section 17(a), the Court stated "each subsection proscribes a distinct category of misconduct. Each succeeding prohibition is meant to cover additional kinds of illegalities — not to narrow the reach of the prior sections." United States v. Naftalin, 441 U.S. 768, 774 (1979).

The breadth of the prohibition in Section 10(b) and Rule 10b-5 was noted in Ernst & Ernst v. Hofchelder where the Court stated that Section 10(b) was intended as a "'catchall'" provision to "’deal with new manipulative [or cunning] devices.'" 425 U.S. at 202 (quoting Hearings on H.R. 7852 and H.R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 115 (1934)). The Court noted that Rule 10b-5 forbids "any course of conduct, that has the effect of defrauding investors." Id. at 212. The Court referenced Webster’s International Dictionary (2d ed. 1934) for the definition of device as "[t]hat which is devised, or formed by design; a contrivance; an invention; project; scheme; often a scheme to deceive." Id. at 199 n.20.

The Court has previously addressed the scope of liability under the Securities Exchange Act and its analysis is not in accord with the Eighth Circuit’s decision. In Central Bank, N.A.v. First lnterstate Bank, N.A., 511 U.S. 164 (1994), the Court ruled that 10b-5 does not provide for liability for those who aid and abet violations of 10b-5, but went on to state that "any person or entity, including a lawyer, accountant, or bank, who employs a manipulative device or makes a material