For the record:
1. Liability for fraudulent misrepresentations under § 10(b) and Rule 10b-5.
Securities-fraud claims are most often brought under § 10(b)
of the Exchange Act, which bars the use of "any manipulative or
deceptive device" in contravention of any rules or regulations involving the national securities exchanges. Section 10(b) has been referred to as a "catchall provision," as it "lumps together
into a brief, all-encompassing rule the prohibitions on market manipulation and on material misrepresentations or omissions, categorizing them all as species of 'fraud' or 'deceit."' After the
passage of the Exchange Act, the Securities and Exchange Commission (SEC) promulgated Rule 10b-5, which prohibits any act or omission resulting in fraud or deceit in connection with the purchase or sale of any security. While neither § 10(b) nor
Rule 10b-5 expressly provides for a private right of action, courts have recognized such actions as implied by both the statute and
the regulation. Civil actions and SEC enforcement actions brought under a Rule 10b-5 theory of liability typically allege material misrepresentations or omissions, often made in quarterly phone calls reporting earnings to investors or in other public pronouncements by issuers and their executives once a security is trading in the secondary markets. The Rule was enacted in part to combat such dishonest practices. To prevail in a Rule
10b-5 action, a private plaintiff must prove six elements:
"(1) a material misrepresentation or omission by the defendant;
(2) scienter; (3) a connection between the misrepresentation or
omission and the purchase or sale of a security; (4) reliance upon
the misrepresentation or omission; (5) economic loss; and (6) loss
causation."
Good Night everyone. And God Bless Blackhawk Partners.
$NHPI
