Securities Law Alert
In This Edition:• D.C. Circuit: (1) Distributing a Statement Authored and Approved by a Superior Does Not Constitute“Making” a Statement Under Janus, But (2) Liability Under Rules 10b-5(a) and (c) Is Not Limited to“Makers” of Statements• S.D.N.Y.: Absent Allegations of a Ponzi Scheme, It Is “Incredibly Difficult” to Satisfy Fifth Third’s“Highly Exacting Standard” for Pleading a Breach of the Duty of Prudence Claim Based on Inside
Information• S.D.N.Y.: Statements Concerning User Metrics Do Not Include Implied Representations Concerning the
Quality of the Users• S.D.N.Y.: (1) Companies Have No Duty to Update Statements of Existing Fact That Do Not Include
Forward-Looking Representations, and (2) Item 303 of Regulation S-K Does Not Mandate Disclosure of
Quantitative Information
October 2017

Litigation
Departmentof the Year in
Finance–New York Law Journal(2017)

Simpson Thacher & Bartlett LLP

D.C. Circuit: (1) Distributing
a Statement Authored andApproved by a Superior Does
Not Constitute “Making”
a Statement Under Janus,
But (2) Liability Under
Rules 10b-5(a) and (c) Is
Not Limited to “Makers” ofStatements

in Janus Capital Group v. First Derivative
Traders, 564 U.S. 135 (2011).1 Lorenzo v.
SEC, 2017 WL 4320272 (D.C. Cir. 2017)(Srinivasan, J.). However, the D.C. Circuit
held that the broker could nevertheless beliable under Rules 10b-5(a) and (c) andSection 17(a)(1)2 because those sections “donot speak in terms of an individual’s ‘making’a false statement.”

On September 29, 2017, the D.C. Circuit heldthat a broker who distributed false statementsthat were authored and approved by his boss
could not be liable under Rule 10b-5(b) as
a “maker” of those statements within themeaning of the Supreme Court’s decision

2. Under Rule 10b-5(a), it is unlawful to “employ any device,scheme, or artifice to defraud … in connection with the purchaseor sale of any security.” Rule 10b-5(c) prohibits individuals
and entities from “engag[ing] in any act, practice, or course ofbusiness which operates or would operate as a fraud or deceit
upon any person … in connection with the purchase or sale of any
security.” Section 17(a)(1) renders it “unlawful for any person in
the offer or sale of securities … to employ any device, scheme, or
artifice to defraud.”

1. Please click here to read our prior discussion of the Court’s
decision in Janus.

Distributing a Statement Is Not
Equivalent to “Making” a Statement
for Janus Purposes

Janus Does Not Limit the Scope of
Liability Under Rules 10b-5(a) and(c) and Section 17(a)(1)Rule 10b-5(b) renders it unlawful to “makeany untrue statement of a material fact … inconnection with the purchase or sale of any
security.” In Janus, 564 U.S. 135, the Supreme
Court held that “the maker of a statement is
the person or entity with ultimate authority
over the statement, including its content andwhether and how to communicate it.” The
Court reasoned that “[w]ithout control, aperson or entity can merely suggest what tosay, not ‘make’ a statement in its own right.”

Although the D.C. Circuit found the broker
did not violate Rule 10b-5(b), the court
held that the broker could nevertheless faceliability under Rules 10b-5(a) and (c) andSection 17(a)(1). The court explained that thephrase “‘[t]o make any … statement’ was thecritical language construed in Janus.” While
this language appears in Rule 10b-5(b), thecourt noted that Rules 10b-5(a) and (c) andSection 17(a)(1) “do not speak in terms of anindividual’s ‘making’ a false statement.”

In the case before the D.C. Circuit, thebroker claimed that “he [had] sent the email
messages at the behest of his boss” who had“supplied the content of the false statements.”
Lorenzo, 2017 WL 4320272. The broker
contended that he had simply “copied andpasted [ ] the messages before distributing
them.” The D.C. Circuit deemed it significant
that the broker’s boss had “approved themessages for distribution.” The court foundthis demonstrated the boss’s “ultimate
authority over the substance and distributionof the emails.”

The D.C. Circuit noted that the broker, “actingwith scienter,” had “produced email messages
containing three false statements about apending offering, sent the messages directly
to potential investors, and encouraged themto contact him personally with any questions.”
Even though the broker was not himself
the “maker” of those statements, the court
determined that the broker’s “own activerole in producing and sending the emails
constituted employing a deceptive ‘device,’‘act,’ or ‘artifice to defraud’ for purposes of
liability under” Rules 10b-5(a) and (c) andSection 17(a)(1).
The Broker’s Conduct Did Not Amount Simply
to Aiding and Abetting Securities Fraud

The D.C. Circuit rejected the broker’s
contention that “if he could be found to haveviolated [these] provisions, the decisionin Janus would effectively be renderedmeaningless” because private parties could
then bring suit for certain forms of aiding andabetting securities fraud.

For purposes of the Janus analysis, the court
considered it immaterial that the broker had“put his own name and direct phone number
at the end of the emails” and “sent the emails
from his own account.” The court reasoned
that this “sort of signature line … can often
exist when one person sends an email that‘publishes a statement on behalf of another,’with the latter person retaining ‘ultimate
authority over the statement.’” Id. (quoting
Janus, 564 U.S. 135).
The D.C. Circuit therefore reversed dismissalof the SEC’s determination that the broker
had violated Rule 10b-5(b).

The D.C. Circuit found the “conduct atissue in Janus materially differ[ed] from[the broker’s] actions in this case.” Lorenzo,
2017 WL 4320272. The court explained that
“Janus involved an investment adviser that
initially drafted false statements which an
independent entity subsequently decided todisseminate to investors in its own name.”
The court emphasized that “[t]he investment
advisor’s role in originally devising thestatements was unknown to the investors who
ultimately received them.”
Here, on the other hand, the broker’s role“was not ‘undisclosed’ to investors,” andthe “dissemination of the false statements
to investors [did not] result only from2the separate ‘decision of an independent
entity.’” Id. (quoting Janus, 564 U.S. 135).
The broker “transmitted misinformation
directly to investors, and his involvement
was transparent to them.” The D.C. Circuit
held that “[t]he [Janus] Court’s concernthat ‘aiders and abettors would be almost
nonexistent’ if a private action under Rule10b-5 reached ‘an undisclosed act preceding
the decision of an independent entity to makea public statement’ need not obtain in the caseof a person’s self-attributed communications
sent directly to investors (and backed
by scienter).”
Rules 10b-5(a) and (c) and Section 17(a)(1)Reach Securities Fraud Actions Involving
False Statements

The D.C. Circuit also rejected the argumentthat “actions involving false statements
must fit within Rule 10b-5(b) and cannot be
brought separately under Rules 10b-5(a) or(c) (or Section 17(a)(1)).” The court explainedthat there was “no blanket reason … to treat
the various provisions as occupying mutually
exclusive territory, such that false-statementcases must reside exclusively within theprovince of Rule 10b-5(b).” Rather, the court
found that “the provisions’ coverage may
overlap in certain respects.”
The D.C. Circuit held that “Rules 10b-5(a)and (c), as well as Sections 10(b) and 17(a)(1),
may encompass certain conduct involving
the dissemination of false statements even
if the same conduct lies beyond the reach ofRule 10b-5(b).”The D.C. Circuit found no “incongruity indeciding both that [the broker] was not a
maker of the false statements under Rule10b-5(b) and that he nonetheless employed afraudulent device and engaged in a fraudulent
act under Rules 10b-5(a) and (c) and Section

17(a)(1).” The court explained that its ruling“follow[ed] naturally from the terms of theprovisions.” The broker “was not the ‘maker’of the false statements because he lacked
ultimate authority over them.” However, thebroker nevertheless “‘engaged’ in a fraudulent‘act’ and ‘employed’ a fraudulent ‘device’when, with knowledge of the statements’falsity and an intent to deceive, he sent thestatements to potential investors carrying
his stamp of approval as investment banking
director.” The court recognized that there
may be individuals “whose ministerial acts inconnection with false statements would failto qualify either as ‘making’ the statements oras ‘employing’ any fraudulent device,” but thebroker here was “not such a person.”Judge Kavanaugh, Dissenting,Opines That the Majority’s Decision
Creates a Circuit Split
In a dissenting opinion, Judge Kavanaugh
stated that “[t]he majority opinion
creates a circuit split by holding thatmere misstatements, standing alone, mayconstitute the basis for so-called scheme
liability under the securities laws—that is,
willful participation in a scheme to defraud—
even if the defendant did not make themisstatements.”3 He found that “[o]ther
courts have instead concluded that scheme
liability must be based on conduct that goesbeyond a defendant’s role in preparing mere
misstatements or omissions made by others.”
In Judge Kavanaugh’s view, these courts
based their decisions on “the important
statutory distinction between primary liability
and secondary (aiding and abetting) liability.”
3. Judge Kavanaugh cited Public Pension Fund Group v.
KV Pharmaceutical Co., 679 F.3d 972 (8th Cir. 2012); WPP
Luxembourg Gamma Three Sarl v. Spot Runner, 655 F.3d 1039
(9th Cir. 2011); Lentell v. Merrill Lynch & Co., 396 F.3d 161 (2dCir. 2005); and SEC v. Kelly, 817 F. Supp. 2d 340 (S.D.N.Y. 2011).

3

S.D.N.Y.: Absent Allegationsof a Ponzi Scheme, It Is“Incredibly Difficult” toSatisfy Fifth Third’s “Highly
Exacting Standard” forPleading a Breach of the Dutyof Prudence Claim Based on
Inside Information
On October 4, 2017, the Southern District of
New York dismissed, in its entirety, an ERISA
action brought against the fiduciaries of an
employee stock ownership plan (the “Plan”).
John Price v. Michael Strianese and Ralph
D’Ambrosio, 2017 WL 4466614 (S.D.N.Y.
Oct. 4, 2017) (Caproni, J.). The action,
which followed closely on the heels of a
related securities fraud action, alleged that
defendants had knowingly failed to protect
Plan participants from a temporary dropin the company’s stock price following thecompany’s disclosure of alleged accounting
misconduct. The court held that plaintiffs
did not adequately allege that defendants
knew or should have known of the alleged
fraud. The court further ruled that plaintiffs
did not satisfy the “highly exacting standard”
established by the Supreme Court’s decisionin Fifth Third Bancorp v. Dudenhoeffer, 134
S. Ct. 2459 (2014)4 for pleading a breachof the duty of prudence claim based on
inside information.

Plaintiffs Did Not Allege Defendants
Knew Or Should Have Known of theAlleged Fraud
Plaintiffs contended that defendants “knewor should have known that [the Plan] had
become an imprudent investment during the[c]lass period” because of alleged accounting
improprieties involving a contract at oneof the company’s operating divisions. In aparallel securities fraud class action litigation,
the Southern District of New York foundplaintiffs failed to allege scienter as to theindividual defendants based on substantiallysimilar allegations.5
4. Simpson Thacher represents certain members of the Benefit
Plan Committee of L3 Technologies (previously known as L-3
Communications) in this matter.
5. Patel v. L-3 Commc’ns Holdings Inc., 2016 WL 1629325(S.D.N.Y. Apr. 21, 2016) (Caproni, J.). Simpson Thacher
represented L3 Technologies’ CEO and CFO in this matter.

Plaintiffs attempted to rely on Jander v.
International Business Machines Corp., 205
F. Supp. 3d 538 (S.D.N.Y. 2016), a case inwhich the court held that the Rule 8 pleading
standard was satisfied in an ERISA action
even though the court found plaintiffs had
not adequately alleged scienter in a parallel
securities fraud action. However, the Pricecourt found Jander “distinguishable” becausethat case involved materially different facts:“a $2.4 billion write down associated withthe sale of an entire business segment.” Here,by contrast, plaintiffs alleged a “material
misstatement aris[ing] out of [allegedly]
improper recognition of $17.9 million inrevenue associated with a single contract ina subdivision of one of [the company’s] fourbusiness segments.” The Price court reasoned
that Jander was inapposite for purposes ofassessing what defendants “knew or shouldhave known” because “a significant write
down associated with the sale of a businesssegment necessarily requires the involvementof the company’s senior most executives,
whereas the revenue recognition associatedwith a single contract typically does not.”Plaintiffs Failed to Meet Fifth
Third’s “More Harm Than Good”
Standard for Pleading a Breach of
the Duty of Prudence Claim Basedon Inside Information
The court found that even if plaintiffs had
satisfied the “knew or should have known”
standard, they “failed to allege an ERISA
breach of duty of prudence claim” based on
inside information. The court explained that,to survive a motion to dismiss under Fifth
Third, plaintiffs “must plausibly allege analternative action that the defendant could
have taken that would have been consistent
with the securities laws and that a prudent
fiduciary in the same circumstances would nothave viewed as more likely to harm the fundthan to help it.” The Price court emphasizedthat Fifth Third established a “highly exacting
standard that is incredibly difficult to satisfy”
and noted that “the vast majority of ERISA
duty of prudence claims brought against[the fiduciaries of employee stock ownershipplans] since Fifth Third have foundered on
the pleading requirements.”
In the case before it, the court foundplaintiffs’ proposed “alternative courses ofaction [did] not satisfy Fifth Third because[plaintiffs] … failed to plead facts plausibly
4

showing that any of these alternatives waslegally viable or that [d]efendants could nothave concluded that they would do more
harm than good.”First, plaintiffs alleged that defendants “could
have closed the [Plan] to new purchases
or otherwise prevented Plan participantsfrom purchasing [company] stock until
the stock price corrected to a non-inflated
value.” The court explained that “[t]his
alternative … has been consistently rejected”
because freezing purchases could have such“dire consequences” as “sending the stock
into a significant price decline and weakening
investor confidence in the company—
particularly if the freeze is not accompanied
by a disclosure explaining the reason for
the freeze.”
Second, plaintiffs argued that defendants
could have made an “earlier public
corrective disclosure.” The Price court
found that post-Fifth Third courts “have[also] consistently … rejected earlier public
disclosure” as a viable alternative course ofaction. Courts have reasoned that a prudent
fiduciary “could very easily conclude that suchan action would do more harm than good,”
especially if “the disclosure would have been
made before the company had an opportunity
to investigate the issue that would havebeen disclosed.”
The Price court observed in passing that it
could “imagine a scenario in which a proposedcorrective disclosure could potentiallysurvive Fifth Third’s standard” if a complaint
included “particularized allegations” that“earlier disclosure of the ‘bad fact’ would
necessarily cause less damage than a later
disclosure.” The court offered as an example acase in which a plan fiduciary was “aware thatthe company [was] a Ponzi scheme that [was]built on sand and virtually worthless.” Thecourt noted that in such a situation, it would“seem[ ] likely that the fiduciary could notconclude that it would cause more harm than
good to disclose as soon as possible.” “Unlike[this] hypothetical Ponzi scheme,” however,the court found that “a prudent fiduciary[in the case before it] could have concluded
that early disclosure would do more harmthan good.” The court stated that “only an
extremely narrow category of … fiduciary
duty claims based on failure to disclose
nonpublic information may survive” a motion
to dismiss under the framework articulated

by Fifth Third. The court opined that thisis due in part to the fact that “‘ERISA andthe securities laws ultimately have differing
objectives pursued under entirely separate
statutory schemes’” and that, as such, “alleged
securities law violations do not necessarily
trigger a valid ERISA claim.”
Finally, the plaintiffs suggested that
defendants could have invested in a “lowcost hedging product that would behave
in a countercyclical fashion vis-à-vis[company] stock.” The court found that this“third alternative [was] also not adequately
pled pursuant to Fifth Third because thedescription of the hedging product [was]simply too vague for the [c]ourt to conclude
that it reflect[ed] a viable option.” The court
further observed that that it was not clear
from plaintiffs’ allegations “whether thepurchase of such a product would qualify
as the purchase of a security that might
implicate insider trading laws.”

S.D.N.Y.: Statements
Concerning User Metrics
Do Not Include Implied
Representations Concerning
the Quality of the Users
On September 22, 2017, the Southern Districtof New York dismissed securities fraudclaims alleging that a media technology
company had misleadingly touted the numberof its “registered users” to “fan investor
enthusiasm” without disclosing that manyof these “users” were unable to access thecompany’s streaming services because oftechnological limitations. In re Eros Int’lSec. Litig., No. 15-CV-8596 (S.D.N.Y. Sept.
22. 2017) (Nathan, J.). The court rejected
plaintiffs’ contention “that a person cannot
be a ‘registered user’ if he or she cannot
meaningfully make ‘use’ of the product.”Plaintiffs acknowledged that the company“did not define the term ‘registered user,’” butalleged that “the term refers in the internet
technology field to persons who not only
register to access a website, but who alsointeract with the website to extract somebenefit.” The court held that plaintiffs could
not “import the word ‘meaningful’ before‘use’ absent some representation on the5part of the [company] about the quality ofregistrants’ use.”
The court also rejected plaintiffs’ contention
that the company “‘failed to warn’ investors
that ‘registered users’ could not make‘meaningful use’” of the company’s streaming
services. The court emphasized that “anomission is actionable under the securities
laws only when the corporation is subject to a
duty to disclose the omitted facts.” The court
explained that “[d]isclosure is not required
simply because an investor might find theinformation relevant or of interest.”
The court found that the company “could
have defined and reported ‘users’ in analternate way that took into account the
specifics of their use, but that does notamount to misrepresentation.”

S.D.N.Y.: (1) Companies Have
No Duty to Update Statementsof Existing Fact That Do Not
Include Forward-Looking
Representations, and(2) Item 303 of Regulation
S-K Does Not Mandate
Disclosure of Speculative
Quantitative Information
On September 30, 2017, the Southern
District of New York held that there is no
duty to update statements of existing factthat cannot be “characterized as ‘hype’ or‘forward-looking projections.’” Plumbers
and Steamfitters Local 137 Pension Fund v.
American Express Co., 2017 WL 4403314(Sept. 30, 2017) (Gardephe, J.). The court
further held that Item 303 of Regulation S-K
does not mandate disclosure of speculative
quantitative information concerning known
trends or uncertainties.

There Is No Duty to Update
Statements That Do Not “Hype” an
Aspect of the Company’s Business
The court explained that “[t]he duty tocorrect applies when ‘a company makes ahistorical statement that at the time made, thecompany believed to be true, but as revealed
by subsequently discovered information

actually was not.’” Id. (quoting In re Int’l Bus.
Machines Corp. Sec. Litig., 163 F.3d 102 (2dCir. 1998)). “Alternatively, ‘a duty to update
may exist when a statement, reasonable atthe time it is made, becomes misleading
because of a subsequent event.’” The courtemphasized that “[t]he duty to update is notwithout limits.” The court stated that the
duty to update “does not extend to (1) ‘vague
statements of optimism or expressions of
opinion’; (2) statements that are ‘not forward
looking and do not contain some factual
representation that remains alive in the mindsof investors as a continuing representation’;or (3) statements that are not material.”

In the case before it, the court founddefendants had no duty to update statements
concerning a business agreement. The court
distinguished the company’s statements fromthose at issue in In re Time Warner Securities
Litigation, 9 F.3d 259 (2d Cir. 1993) and In re
Quintel Entertainment Securities Litigation,
72 F. Supp. 2d 283 (S.D.N.Y. 1999). In bothcases, “defendants ‘hyped’ a part of theirbusiness plan as a solution to a problem or tojustify a claim that the value of the company
was increasing.” Here, however, there were
no allegations that the company “hyped” theagreement at issue.

Item 303 of Regulation S-K
Does Not Mandate Disclosure ofSpeculative Quantitative BusinessInformation
Plaintiffs contended that defendants “failed toquantify and disclose the expected impact” ofa “known trend of increased competition withrespect to co-brand agreements” as required
under Item 303 of Regulation S-K, whichsets forth the disclosure requirements for
the Management’s Discussion and Analysis(MD&A) section of a public company’s
SEC filings. Item 303 states that a publiccompany must “[d]escribe any known trends
6

or uncertainties that have had or that theregistrant reasonably expects will have amaterial favorable or unfavorable impact
on net sales or revenues or income fromcontinuing operations.”6
The court noted that the SEC has “cautionedthat [Item 303] requires quantitative
information only when it is reasonably
available and will provide material
information for investors.” The court also
observed that in Stratte-McClure v. Morgan
6. On March 27, 2017, the Supreme Court granted certiorari toaddress whether Item 303 of Regulation S-K creates a duty todisclose for purposes of Section 10(b) and Rule 10b-5. However,on October 17, 2017, the Court granted a request to cancel
arguments in light of a settlement between the parties. Pleaseclick here to read our discussion of the Court’s grant of certiorari
in Leidos v. Indiana Public Ret. Sys. (No. 16-581).

Stanley, 776 F.3d 94 (2d Cir. 2015), theSecond Circuit did not interpret Item 303
to “require companies to ‘give competitors
notice of proprietary strategies andinformation.’” Id. (quoting Stratte-McClure,776 F.3d 94). The court explained that
“Stratte-McClure evinces a concern for thedisclosure of sensitive business information.”
The court held the company was not required
under Item 303 to “precisely quantify
potential effects on its business” because thecompany “did not know (1) which agreements
might not be renewed; (2) which agreements
might be renewed on less favorable terms;or (3) for agreements that were renewed onless favorable terms, what the new terms andtheir financial impact might be.”The Securities Law Alertis edited by Paul C. Gluckow
pgluckow@stblaw.com /+1-212-455-2653, Peter E. Kazanoffpkazanoff@stblaw.com /+1-212-4553525 and Jonathan K. Youngwood
jyoungwood@stblaw.com /+1-212-455-3539.

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