SEC v. Garber, 2013 WL 1732571 (S.D.N.Y. Apr. 22, 2013)

本件では,連邦証券法規則144の適用,Janus判決に基づく“make”への該当性および欺罔の意図の有無が争われました。規則144が争われる事例は珍しいので,紹介します。

  • 規則144について

Defendants did not satisfy Rule 144 because the original debt was not a security but rather was “akin to an ‘IOU’ for services rendered or compensation owed to a current or former affiliate of the issuer.” FN16 The SEC alleges that the “Individual Defendants, who were experienced securities professionals and sophisticated investors, knew or were reckless in not knowing that the debts were not securities.”

  • 欺罔の意図の有無について

The SEC alleges that the “Individual Defendants, who were experienced securities professionals and sophisticated investors, knew or were reckless in not knowing that the debts were not securities.” … The fact that the attorney letters were a precondition to the success of the scheme does not undermine the allegations of opportunity to commit fraud―rather, the fact of obtaining said letters, the sole purpose of which was to further the alleged scheme, supports the allegations of fraudulent intent.

  • Janus判決に基づく“make”の該当性

Drawing all reasonable inferences in favor of the SEC, the attorneys appear analogous to the investment advisors in Janus and Defendants to the client, whom Janus suggests was the maker of the statement. Defendants solicited the advisory opinion and had “ultimate authority … over whether and how to communicate it,” at least in the context of the alleged scheme. The issuance of the advisory opinion at Defendants’ behest did not further the scheme, it was only when Defendants presented the information in support of their ability to sell the penny stocks without registration that they had the intended effect.FN54 Even under Janus, the “making” of these statements could be attributed to Defendants.

via Race to the Bottom

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