Last week, the Court's unanimous Erica P. John Fund opinion removed a hurdle to certain securities fraud class action plaintiffs. On June 13, however, the Court issued a 5-4 opinion favoring securities fraud defendants in Janus Capital Group, Inc. v. First Derivatives Traders, 564 U.S. ___ (2011). In it, the Court addressed what it means to "make" a false statement that violates Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. Analogizing to a speechwriter, the majority ruled that an investment adviser is not liable under Rule 10b-5 if it provides misleading information that the adviser's client uses in a prospectus. Rather, only the client can be liable; the client is like the speech maker who is responsible for the words coming out of his mouth, even if another person scripted them.
Janus Capital Group, Inc. is a publicly-traded company that created the Janus family of mutual funds. Janus Capital Group also has a subsidiary--Janus Capital Management, LLC--that provides investment advise and administration services to those mutual funds. Janus Investment Fund is a separate legal entity owned entirely by the mutual fund investors. As required by law, Janus Investment Fund registered prospectuses, etc., with the SEC as part of its investment activities.
Prospectuses for many Janus mutual funds indicated they were not suitable for market timing and suggested that the separate management company would implement policies to prevent that practice. As it turns out, however, no such policies existed. In fact, the New York Attorney General alleged that secret arrangements permitted such market timing (which harms other investors in the fund). This led investors to flee Janus Investment Funds. According to the plaintiffs, those withdrawals reduced the management company's compensation significantly, which also diminished the value of Janus Capital Group's stock. Thus, the plaintiffs in this case are investors in Janus Capital Group and sued over the decline in that entity's stock price.
In concluding that Janus Capital Group and Janus Capital Management did not make the allegedly-misleading statements in the prospectuses, the Court viewed this case as continuation of its earlier decisions in Central Bank of Denver, N.A., v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), and Stoneridge Investment Partners, LLC v. Scientific Atlanta, Inc., 552 U.S. 148 (2008). Central Bank held that no private right of action under Rule 10b-5 exists against aiders and abettors of securities fraud. Stoneridge held that the private right of action doesn't reach a third party whose undisclosed conduct enables another person to make misleading statements in securities filings.
The Court concluded that only the entity filing the prospectuses, Janus Investment Fund, could "make" the misleading statements in those prospectuses, even if Janus Capital Group or Janus Capital Management participated in drafting the offending portions of those documents. This is where the Court compared Janus Investment Fund to a speechmaker and the other entities to speechwriters. In doing so, the Court declined to defer to the SEC's interpretation, noting "skepticism" over the degree of deference the SEC should receive when dealing with the implied right of action. Slip Op. at 9 n.8. Moreover, to the extent some liability should attach when an adviser participates in drafting the misleading statements, that change in the law "is properly the responsibility of Congress and not the courts." Id. at 10.
Addressing concerns raised in the dissent, the majority noted that nothing in the prospectuses suggested that the challenged statements came from either Janus Capital Group or Janus Capital Management. Id. at 11. And while it is possible to "indirectly" make a misleading statement supporting a private claim under Rule 10b-5, "attribution is necessary," at a minimum. Id. at 11 n.11.
A principal concern for the dissent is that the rule may lead to no one facing liability. For example, if the adviser intentionally prepared false information and the fund's board believed it was true, "in such circumstances, no one could be found to have 'ma[d]e' a materially false statement . . . ." Dissent at 10.
While the case presents an important analysis of the scope of Rule 10b-5 liability for advisers, managers, etc., it also is interesting in its refusal to defer to the SEC's interpretation of "make." Combined with Central Bank and Stoneridge, this opinion continues to narrow the scope of potential defendants for these types of claims.
Justice Thomas authored the opinion, and the Chief Justice and Justices Scalia, Kennedy, and Alito joined. Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan.