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The Supreme Court Hands the S.E.C. a Rare Win

Category: Business,Finance

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The Securities and Exchange Commission’s record in the Supreme Court has not been strong the past few years.

The court limited the period during which the agency can pursue a fraud claim and required a case seeking disgorgement be filed within five years of the violation.

But the justices handed the S.E.C. a significant victory last month in Lorenzo v. S.E.C., affirming the agency’s authority to pursue fraud cases.

The agency had found that Francis V. Lorenzo, the former director of investment banking at a Staten Island brokerage firm, had misled investors about Waste2Energy Holdings’ assets while trying to sell $15 million of debt for the company. Mr. Lorenzo forwarded emails at the direction of his boss that said the company had $10 million in assets, when in fact its assets were worth less than $400,000.

Rather than charge him with being an accomplice to fraud, the S.E.C. accused him of being what is known as a “primary violator” of the main antifraud provision, Rule 10b-5.

Mr. Lorenzo argued that the Supreme Court’s 2011 decision in Janus Capital Group v. First Derivative Trading limited liability for misleading statements to those who “make” the statements, not those who help put the statements out to investors. The court said in its pithy ruling in the Janus case: “One ‘makes’ a statement by stating it.” In other words, only the speaker can be held to violate Rule 10b-5.

The Janus case, however, involved a private securities fraud class action, not an enforcement action by the S.E.C. So instead of limiting the main antifraud provision to only those that make the misleading statements, the court found in the Lorenzo case that “it would seem obvious that the words in these provisions are, as ordinarily used, sufficiently broad to include within their scope the dissemination of false or misleading information with the intent to defraud.” In other words, by participating in sending out false information, Mr. Lorenzo was culpable for engaging in a fraudulent scheme.

The court concluded its opinion by pointing out that “Congress intended to root out all manner of fraud in the securities industry. And it gave to the commission the tools to accomplish that job.” The key tool to fight fraud is Rule 10b-5, and the agency can now pursue a wide range of cases in which misleading information is given to investors, even if the person charged cannot be said to have actually made the statement.

Justice Stephen G. Breyer wrote the court’s opinion in the Lorenzo case, and he was able to turn the tables on the Janus case in which he wrote a dissenting opinion. In Janus, he argued that “the majority has incorrectly interpreted the rule’s word ‘make.’” So his opinion in the Lorenzo case let him give a broad reading to the scope of Rule 10b-5, at least when the S.E.C. files an enforcement action to prevent those trying to defraud investors. Justice Thomas, who wrote the opinion in the Janus case, asserted in the Lorenzo case that Justice Breyer’s opinion “renders Janus a dead letter.”

The key question is how the courts will read the ruling in the Lorenzo case as it relates to private plaintiffs pursuing securities fraud class actions. Will misstatements by a company, for instance, qualify as a Rule 10b-5 violation? The decision in the Janus case largely had shut down such claims by limiting the potential defendants to those who made the statements.

Private plaintiffs likely will cite the decision in the Lorenzo case to claim that a misstatement or failure to disclose information operated as a scheme to defraud, which means that anyone involved in putting out misleading information could be sued. That could significantly expand the number of potential defendants who can be sued for securities fraud and carry the possibility for significant recoveries from those with deep pockets who played some role in sending out misleading information to investors.

Companies are rightfully fearful of securities fraud class actions. The broad civil discovery available to plaintiffs means potentially embarrassing or damaging information could see the light of day. If plaintiffs can use the decision in the Lorenzo case to survive an initial motion to dismiss, that will give them significant leverage to extract a settlement from the defendants.

In 1995, Congress acceded to the call of companies tired of being sued by adopting the Private Securities Litigation Reform Act, making it more difficult to pursue securities fraud class actions by giving courts the power to dismiss cases at an early stage. Whether Congress will be willing to step in again to cut back on securities fraud lawsuits by limiting the ruling in the Lorenzo case remains to be seen. Companies can be expected to demand greater protection from fraud claims because of the risk these lawsuits pose.


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