Page:Amicus brief - Stoneridge v Scientific-Atlanta - Chamber of Commerce of the United States of America.pdf/27

 18 offering [a security] for sale” made “for the purpose of inducing the purchase or sale” of that security. 15 U.S.C. § 78i(a)-(c). Unlike § 10(b), § 9(e) creates additional express private civil liability for “[a]ny person who willfully participates in any act or transaction” prohibited by §§ 9(a)(c). 15 U.S.C. § 78i(e) (emphasis added). As Pinter, 486 U.S. at 650 n.26, held, § 9(e) shows “Congress knew of the collateral participation concept” and thus that concept should not be implied into other civil liability provisions. Nonetheless, even the class of defendants under § 9(e) does not include “one who aids or abets a violation.” See Central Bank, 511 U.S. at 179. “Scheme liability” would improperly render important restrictions on the express § 9(e) action meaningless, by creating instead a more easily satisfied § 10(b) implied action. For example, § 9 is limited to specified manipulative practices and a narrow class of false or misleading statements made directly between buyers and sellers of securities, see, e.g., Robbins v. Banner Indus., Inc., 285 F. Supp. 758, 761 (S.D.N.Y. 1966), for the specific “purpose of inducing the purchase or sale” of the specific security purchased or sold by the defendant. 15 U.S.C. § 78i(a)(4). Thus, unlike § 10(b), a purchaser in the secondary market could not sue even an issuer under § 9 over its periodic financial reports. See Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 788 (2d Cir. 1951) (§ 9(a)(4) “impose[s] restrictions somewhat like those imposed on a suit under § 11 of the 1933 Act”). 3. §§ 11 and 12 of the 1933 Act: Section 11 of the 1933 Act creates a claim against only enumerated defendants – directors of the issuer, underwriters, and those who sign or consent to be named in a registration statement – for misrepresentations or omissions in a registration statement for an offering of new securities. See 15 U.S.C. § 77k(a). It does not apply to others who cause or assist misstatements by the enumerated defendants. See Central Bank, 511 U.S. at 179.