Page:Amicus brief - Stoneridge v Scientific-Atlanta - Chamber of Commerce of the United States of America.pdf/35

 26 and abettors, for distribution to shareholders. See SEC, 2006 Performance and Accountability Report 23 (Nov. 2006), available at http://www.sec.gov/about/secpar2006.shtml. See also Interim Report, at 71 (“The United States has the toughest administrative enforcement of securities laws in the world.”)14 Congress’s repeated decisions not to modify Central Bank in private civil suits is at least “entitled to a good deal of weight.” Blue Chip, 421 U.S. at 749. Indeed, “[i]t is the federal lawmaker’s prerogative. . . to. . . shape the contours of. . . § 10(b) private actions.” Tellabs, 127 S. Ct. at 2512. Legislative acquiescence is particularly strong here because, “[o]nly one month after” Central Bank was decided “Congress held its first hearings on this precise issue. Exhaustive hearings have been held on the issue at various times since then[;]” and Congress has rejected various bills to overrule Central Bank. Bob Jones Univ. v. United States, 461 U.S. 574, 600-01 (1983). “In view of its prolonged and acute awareness of so important an issue,” id., Congress has decided that Central Bank provides the proper rule of decision in § 10(b) private actions. 14

As petitioner and its amici note, the 1933 and 1934 Acts refer in several places explicitly to misrepresentations, omissions, conduct, and acts rather than to a “manipulative or deceptive device or contrivance.” Petitioner and its amici incorrectly contend that these references prove that Congress intended the language of § 10(b) to cover “scheme” liability. Pet. Br. at 18-21; Regents Br. at 17-20, 24; Ohio Br. at 15-20; Ark. Br. at 12-14. This argument is a red herring. No one disputes that § 10(b) applies to “conduct.” But for a § 10(b) private civil claim to be based on conduct, the conduct must itself be “deceptive or manipulative” and satisfy “all of the requirements for primary liability under Rule 10b-5.” Central Bank, 511 U.S. at 191. Petitioner and its amici contend that participating in a “scheme” is “deceptive” conduct. Nothing in any of the statutory provisions cited by petitioner or its amici addresses, expressly or implicitly, whether participating in a “scheme” constitutes “deceptive” conduct under § 10(b), or satisfies the other requirements for primary liability, such as reliance and loss causation. Those provisions are therefore irrelevant.