194
Stevens, J., dissenting
formulation from the Restatement of Torts § 876(b) (1939)), later opinion, 286 F. Supp. 702 (1968), aff'd, 417 F. 2d 147 (CA7 1969), cert. denied, 397 U. S. 989 (1970). See also Pettit v. American Stock Exchange, 217 F. Supp. 21, 28 (SDNY 1963).
The Courts of Appeals have usually applied a familiar three-part test for aider and abettor liability, patterned on the Restatement of Torts formulation, that requires (i) the existence of a primary violation of § 10(b) or Rule 10b-5, (ii) the defendant's knowledge of (or recklessness as to) that primary violation, and (iii) "substantial assistance" of the violation by the defendant. See, e. g., Cleary v. Perfectune, Inc., 700 F. 2d 774, 776-777 (CA1 1983); IIT, An Int'l Investment Trust v. Cornfeld, 619 F. 2d 909, 922 (CA2 1980). If indeed there has been "continuing confusion" concerning the private right of action against aiders and abettors, that confusion has not concerned its basic structure, still less its "existence." See ante, at 170. Indeed, in this case, petitioner assumed the existence of a right of action against aiders and abettors, and sought review only of the subsidiary questions whether an indenture trustee could be found liable as an aider and abettor absent a breach of an indenture agreement or other duty under state law, and whether it could be liable as an aider and abettor based only on a showing of recklessness. These questions, it is true, have engendered genuine disagreement in the Courts of Appeals.3 But instead of simply addressing the questions presented by the parties, on which the law really was unsettled, the Court sua sponte directed
3 Compare, for example, the discussion in the opinion below of scienter in cases in which defendant has no disclosure duty, 969 F. 2d 891, 902-903 (CA10 1993), with that in Schatz v. Rosenberg, 943 F. 2d 485, 496 (CA4 1991), and Ross v. Bolton, 904 F. 2d 819, 824 (CA2 1990). See also Kuehnle, Secondary Liability Under The Federal Securities Laws—Aiding and Abetting, Conspiracy, Controlling Person, and Agency: Common-Law Principles and The Statutory Scheme, 14 J. Corp. L. 313, 323-324, and n. 53 (1988).
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