“Negligent Securities Fraud” Under Sections 17(a)(2) and (3) Congress enacted the Securities Act of 1933 to protect investors from fraud in the offer or sale of securities. To that end, Section 17(a)(2) establishes ‘‘misstatement liability,” making it unlawful to obtain money or property by means of any untrue statement or omission of a material fact.6 Sections 17(a)(1) and (3) each articulate forms of ‘‘scheme liability’’ by prohibiting, respectively, “any device, scheme, or artifice to defraud” and “any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.”7 Rule 10b-5,8 adopted by the SEC pursuant to Section 10(b) of the Exchange Act,9 makes similar prohibitions as those contained in Section 17(a) applicable to “purchasers” of securities as well; Rule 10b-5(b), like Section 17(a)(2), establishes “misstatement liability” and Rules 10b-5(a) and (c), like Sections 17(a)(1) and (3), establish “scheme liability.” Over three decades ago, the Supreme Court established that Section 10(b), Rule 10b-5, and Section 17(a)(1) require the SEC to prove that the defendant acted with an intent to “deceive, manipulate or defraud.”10 No such specific intent is required to establish a claim under Sections 17(a)(2) or (3). Rather, Sections 17(a)(2) and (3) only require proof of negligence and, in that regard, focus “upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible.”11
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