Supreme Court Resolves Janus Controversy But The Gates of War Are Not Entirely Closed

Yesterday, the U.S. Supreme Court issued its decision in Janus Capital Group, Inc. v. First Derivative Traders. In a 5-4 decision, the Court found that to be liable under Rule 10b-5, a person must “make” the material misstatement. According to Justice Thomas writing for the majority, a person is a “maker” of a statement when that person “is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.” The majority rejected the government’s amicus argument that “make” should be defined as “create”.

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