596
Ginsburg, J., dissenting
tus," or to have included a § 2 definition at all. If all the key words of the 1933 Act are to be defined by the meanings imparted to them by the securities industry, there should be no need for Congress to attempt to define them by statute. The majority does not permit Congress to implement its intent unless it does so exactly as the Court wants it to.
For the foregoing reasons, I respectfully dissent.
Justice Ginsburg, with whom Justice Breyer joins, dissenting.
A seller's misrepresentation made "by means of a prospectus or oral communication" is actionable under § 12(2) of the Securities Act of 1933, 15 U. S. C. § 77l(2). To limit the scope of this civil liability provision, the Court maintains that a communication qualifies as a prospectus only if made during a public offering.1 Communications during either secondary trading or a private placement are not "prospectuses," the Court declares, and thus are not covered by § 12(2).
As Justice Thomas persuasively demonstrates, the statute's language does not support the Court's reading. Section 12(2) contains no terms expressly confining the provision to public offerings, and the statutory definition of "prospectus"—"any prospectus, notice, circular, advertisement, letter, or communication, written or by radio or television, which offers any security for sale or confirms the sale of any security," § 2(10), 15 U. S. C. § 77b(10)—is capacious.
The Court presents impressive policy reasons for its construction, but drafting history and the longstanding scholarly and judicial understanding of § 12(2) caution against judicial resistance to the statute's defining text. I would leave any alteration to Congress.
1 I understand the Court's definition of a public offering to encompass both transactions that must be registered under § 5, 15 U. S. C. § 77e, and transactions that would have been registered had the securities involved not qualified for exemption under § 3, 15 U. S. C. § 77c.
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