200
Stevens, J., dissenting
however, sweeps far beyond even those important issues. The majority leaves little doubt that the Exchange Act does not even permit the SEC to pursue aiders and abettors in civil enforcement actions under § 10(b) and Rule 10b-5. See ante, at 177 (finding it dispositive that "the text of the 1934 Act does not itself reach those who aid and abet a § 10(b) violation"). Aiding and abetting liability has a long pedigree in civil proceedings brought by the SEC under § 10(b) and Rule 10b-5, and has become an important part of the SEC's enforcement arsenal.11 Moreover, the majority's approach to aiding and abetting at the very least casts serious doubt, both for private and SEC actions, on other forms of secondary liability that, like the aiding and abetting theory, have long been recognized by the SEC and the courts but are not expressly spelled out in the securities statutes.12
11 See, e. g., SEC v. Coffey, 493 F. 2d 1304, 1316 (CA6 1974); Ruder, 120 U. Pa. L. Rev., at 625-626, nn. 124 and 125. The SEC reports that it asserted aiding and abetting claims in 15 percent of its civil enforcement proceedings in fiscal year 1992, and that elimination of aiding and abetting liability would "sharply diminish the effectiveness of Commission actions." Brief for SEC as Amicus Curiae 18, n. 15.
12 The Court's rationale would sweep away the decisions recognizing that a defendant may be found liable in a private action for conspiring to violate § 10(b) and Rule 10b-5. See, e. g., U. S. Industries, Inc. v. Touche Ross & Co., 854 F. 2d 1223, 1231 (CA10 1988); SEC v. Coffey, 493 F. 2d 1304, 1316 (CA6 1974); Ferguson v. Omnimedia, Inc., 469 F. 2d 194, 197- 198 (CA1 1972); Shell v. Hensley, 430 F. 2d 819, 827, n. 13 (CA5 1970); Dasho v. Susquehanna Corp., 380 F. 2d 262, 267, n. 2 (CA7), cert. denied sub nom. Bard v. Dasho, 389 U. S. 977 (1967). See generally Kuehnle, 14 J. Corp. L., at 343-348. Secondary liability is as old as the implied right of action under § 10(b) itself; the very first decision to recognize a private cause of action under the section and rule, Kardon v. National Gypsum Co., 69 F. Supp. 512 (ED Pa. 1946), involved an alleged conspiracy. See also Fry v. Schumaker, 83 F. Supp. 476, 478 (ED Pa. 1947) (Kirkpatrick, C. J.). In addition, many courts, concluding that § 20(a)'s "controlling person" provisions, 15 U. S. C. § 78t, are not the exclusive source of secondary liability under the Exchange Act, have imposed liability in § 10(b) actions based upon respondeat superior and other common-law agency principles. See, e. g., Hollinger v. Titan Capital Corp., 914 F. 2d 1564, 1576-1577, and
Page: Index Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: October 4, 2007