미국 증권법상 SEC Rule 10b-5와 Scheme Liability에 관한 최근 판례연구

Since the Central Bank of Denver ruling, the US Supreme Court had held that individual plaintiffs may not file a lawsuit on the basis of the ‘scheme liability.’ In 2008, the Stoneridge Court held that it was not possible to impose a liability based on scheme liability to those who assisted in improper disclosure. 2 years later, in the case of PIMCO, the Second Court of Appeals held that the law firm or attorney had actually prepared the disclosure documents, and in that case the lawyer or attorney had the disclosure obligation. In Janus, the Supreme Court held that only a person who had ultimate authority over a misstatement may be held liable under Rule 10b-5(b), which prohibits the making of fraudulent statements. In Lorenzo v. SEC, the Supreme Court held that someone who disseminates a false or misleading statement, made by another person, can be primarily liable for participating in a fraudulent scheme. The ruling expands the scope of securities-fraud claims that can be brought by the SEC and particularly by private plaintiffs. The SEC and private parties may, in different settings, attempt to rely on the Lorenzo decision to pursue Rule 10b-5(a) and (c) claims against persons who did not ‘make’ the statements at issue, but who knowingly disseminated the statements with the intent to defraud investors. The ruling in Lorenzo may diminish the importance of Janus decision as a limitation on liability in misstatement cases, although the Court assumed both knowledge of material falsity and the intent to defraud.