19 Sections 12(a)(1) and 12(a)(2) claims are directed against anyone who “[o]ffers or sells a security . . . by means of a prospectus or oral communication” that is false or misleading, or in violation of registration requirements, to be sued by “the person purchasing such security from him.” 15 U.S.C. § 77l(a)(1)-(2). The class of defendants is again limited, to those in privity with the plaintiff or who directly solicit the plaintiff’s purchase at least in part for their own financial gain. This Court rejected extending § 12 liability to someone “‘whose participation in the buy-sell [securities] transaction is a substantial factor in causing the transaction to take place.’” Pinter, 486 U.S. at 649; see Central Bank, 511 U.S. at 179. An implied cause of action for “scheme” liability under § 10(b) against companies engaged in commercial transactions with the issuer or seller would undo Congress’s policy choices limiting §§ 11 and 12 claims.10 B. “Scheme” Liability Would Nullify Statutory Provisions Intended To Be Enforceable Only By The Government. In stark contrast, other provisions of the 1933 and 1934 Acts allow only the SEC and the Justice Department, not private litigants, to sue the very defendants targeted by private “scheme” liability. Petitioner’s argument would obliterate these policy decisions made by Congress. 10
Herman & MacLean v. Huddleston, 459 U.S. 375 (1983), does not suggest otherwise. That case involved a § 10(b) claim against an accounting firm for its own allegedly false statements. See id. at 377. In a footnote, dictum suggests that § 10(b) may apply to “certain individuals who play a part in preparing the registration statement.” Id. at 386 n.22 (emphases added). A person that plays a “part in preparing” a false registration statement may arguably be “using or employing” that false statement under § 10(b). But commercial counterparties play no “part in preparing” the issuer’s financial statements, and that is not the theory of “scheme” liability. Rather, “scheme” liability rests on the assertion that the implied § 10(b) action extends to the commercial counterparty’s undisclosed transaction itself. Nothing in Herman & MacLean remotely supports that.
