592
Thomas, J., dissenting
ties. Or Congress could have chosen not to burden government securities with the costs that might accrue from additional liabilities on initial or secondary sales.
II
The majority argues that the 1933 Act's central focus on initial public offerings requires us to read its provisions as extending only to those distributions. We have recognized, however, that not all of the provisions of the 1933 Act are limited to initial public offerings, nor are all of the provisions of the 1934 Act limited to secondary transactions. Thus, § 10(b) of the 1934 Act and Securities and Exchange Commission (SEC) Rule 10b-5 reach both initial and secondary distributions. Similarly, we have held that § 17 of the 1933 Act reaches beyond initial distributions to aftermarket trading. United States v. Naftalin, 441 U. S. 768 (1979).
In reaching our holding in Naftalin, we rejected two arguments relevant here. First, we were not swayed by the contention that the structure of the 1933 Act limited § 17 to new issues. As we noted, the statutory language "makes no distinctions between the two kinds of transactions [initial distributions and ordinary market trading]." Id., at 778. Second, the 1934 Act's prohibition of fraud in the secondary sale of securities did not lead us to infer that the 1933 Act's provisions apply solely to new offerings. " 'The fact that there may well be some overlap is neither unusual nor unfortunate.' " Ibid. (quoting SEC v. National Securities, Inc., 393 U. S. 453, 468 (1969)).
Here, § 12(2) contains no distinction between initial and
secondary transactions, or public and private sales. Thus, if the majority wished to remain faithful to Naftalin, it would hold that the provision reaches both secondary and private transactions. To be sure, § 10(b) of the 1934 Act, 15 U. S. C. § 78j(b), and SEC Rule 10b-5 provide a cause of action for misstatements made in connection with secondary and private securities transactions. However, "it is hardly a novel
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