United States First Circuit

In SEC's action against executives of a registered broker-dealer for allegedly allowing certain preferred customers to engage in market timing, district court's dismissal of the SEC's Rule 10b-5(b) claim is affirmed as the SEC's expansive interpretation of "make" as used in Rule 10b-5(b) is inconsistent with the text of the rule and with the ordinary meanings of the phrase "to make a statement," inconsistent with the structure of the rule and relevant statutes, and in considerable tension with Supreme Court precedent. (En Banc opinion)

Appellate Information

• Decided 03/10/2010
• Published 03/10/2010

Judges

• LIPEZ, Circuit Judge., Before SELYA and LIPEZ, Circuit Judges, and DELGADO-COLN, District Judge.

Court

• United States First Circuit

Counsel

• For Appellant:
  
• John W. Avery, Senior Litigation Counsel, Securities and Exchange Commission, with whom Andrew N. Vollmer, Deputy General Counsel, and Jacob H. Stillman, Solicitor, were on brief, for appellant.


• For Appellees:
  
• Elliot H. Scherker, with whom Greenberg Traurig, P.A., A. John Pappalardo, John A. Sten, David G. Thomas, D. Greg Blankinship, and Greenberg Traurig, LLP, were on brief, for appellee Tambone., Christopher M. Joralemon, with whom Warren L. Feldman, Clifford Chance U.S. LLP, Frank A. Libby, Jr., John J. Commisso, and Kelly, Libby & Hoopes, P.C., were on brief, for appellee Hussey.