604
Ginsburg, J., dissenting
suggests it is,8 Congress is equipped to undertake the alteration. Accordingly, I dissent from the Court's opinion and judgment.
8 Section 12(2) did not become prominent in Securities Act litigation until this Court held in Ernst & Ernst v. Hochfelder, 425 U. S. 185 (1976), that an action for civil damages under § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 CFR § 240.10b-5 (1975), requires proof of sci-enter. See Loss, The Assault on Securities Act Section 12(2), 105 Harv. L. Rev. 908, 910 (1992).
Though the Court of Appeals' reading of § 12(2) shows fidelity to the
statute Congress passed, this Court's opinion makes noteworthy practical and policy points. As the Court observes, ante, at 578, under the Court of Appeals' reading, § 12(2) would equip buyers with a rescission remedy for a negligent misstatement or omission even if the slip did not cause the buyer's disenchantment with the investment. And, in light of the "free writing" provision of § 2(10)(a), 15 U. S. C. § 77b(10)(a) (a communication will not be deemed a "prospectus" if its recipient was previously sent a prospectus meeting the requirements of § 10), the Court of Appeals' reading, ironically, would leave a seller more vulnerable in private transactions than in public ones.
Last modified: October 4, 2007