Page:Slack Technologies v. Pirani.pdf/11

8 this decision, even the Ninth Circuit seemed to take the same view. Hertzberg v. Dignity Partners, Inc., 191 F. 3d 1076, 1080, and n. 4 (1999).

Resisting this conclusion, Mr. Pirani argues that we should read the phrase “such security” to include not only securities traceable to a defective registration statement. We should also read the phrase to include other securities that bear some sort of minimal relationship to a defective registration statement. And, he argues, a reading like that would allow his case to proceed because, but for the existence of Slack’s registration statement for the registered shares, its unregistered shares would not have been eligible for sale to the public. Brief for Respondent 22–23. Beyond assuring us that the rule he proposes would save his case, however, Mr. Pirani does not offer much more. He does not explain what the limits of his rule would be, how we might derive them from §11, or how any of this can be squared with the various contextual clues we have encountered suggesting that liability runs with registered shares alone.

Perhaps the closest Mr. Pirani comes to answering these questions comes when he directs us to §5. If Congress wanted liability under §11(a) to attach only to securities issued pursuant to a particular registration statement, he observes, it could have simply borrowed similar language from §5. That provision, he stresses, speaks of “any security with respect to which a registration statement has been filed.” §77e(b)(1). But even taken on its own terms, this argument does not prove much. If Mr. Pirani’s example shows that Congress could have written §11(a) to explain more clearly that liability attaches only to securities issued pursuant to a particular registration statement, it also shows that Congress could have written §11(a) to explain more clearly that liability attaches to “any security” or “any