미국 증권거래법상 증권사기에 대한 주주의 사적 소권 범위 - Janus Capital Group Inc. v. First Derivative Traders 판례를 중심으로 -

Since 1994 the Supreme Court has decided three significant cases with respect to the private right of action under the Securities Exchange Act of 1934. The first case is Central Bank of Denver, N.A. v. First Interstate Bank of Denver in 1994 holding that section 10(b) and Rule 10b-5 do not create an implied private cause of action for aiding and abetting, and the second case is Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc. in 2008, which reaffirmed its determination of Central Bank of Denver, holding that customers and suppliers of a company that issued fraudulent financial statements to its shareholders were not liable to those shareholders because those shareholders could not be said to have relied on any fraudulent conduct or speech on the part of the customers or suppliers. The Supreme Court, however, has not provided the guide to distinguish the primary liability for making a false or misleading statement from the liability of secondary actors. As securities fraud cases have increased in the aftermath of the economic crisis since 2008, the guide has been disputed more in order to compensate investors properly for the damage from securities fraud in the market. In terms of the liability of secondary actors, such as the investment adviser, for the violation of Section 10(b) and Rule 10b-5, the Supreme Court addressed the more clarified standard in its decision of Janus Capital Group Inc. v. First Derivative Traders. The Court held that the “maker” of a statement (or a misstatement) is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it, and without such control or authority a person may be said to suggest a statement but cannot be deemed its “maker”. This Court's decision limited the implied private right of action under Section 10(b) and Rule 10b-5 and rejected to consider the unique and actual relationship between the secondary actor, the investment adviser, and the fund, the primary violator. While the blurry line between primary and secondary misconduct has been clarified in a way that bars to private lawsuits brought under Section 10(b) against all secondary actors, there still remain issues to be discussed. This paper first presents the history of the private right of action under Section 10(b) and Rule 10b-5, including Court precedents and legislative actions, as the factual background leading to the Janus case, and then analyzes the Supreme Court's decision in the Janus case to provide deeper understanding and current status of the private right of action under the U.S. securities regulations.