Janus Capital Group, Inc. v. First Derivative Traders ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JANUS CAPITAL GROUP, INC., ET AL. v. FIRST
DERIVATIVE TRADERS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 09–525. Argued December 7, 2010—Decided June 13, 2011
Respondent First Derivative Traders (First Derivative), representing a
class of stockholders in petitioner Janus Capital Group, Inc. (JCG),
filed this private action under Securities and Exchange Commission
(SEC) Rule 10b–5, which forbids “any person . . . [t]o make any un
true statement of a material fact” in connection with the purchase or
sale of securities. The complaint alleged, inter alia, that JCG and its
wholly owned subsidiary, petitioner Janus Capital Management LLC
(JCM), made false statements in mutual fund prospectuses filed by
Janus Investment Fund—for which JCM was the investment adviser
and administrator—and that those statements affected the price of
JCG’s stock. Although JCG created Janus Investment Fund, it is a
separate legal entity owned entirely by mutual fund investors. The
District Court dismissed the complaint for failure to state a claim.
The Fourth Circuit reversed, holding that First Derivative had suffi
ciently alleged that JCG and JCM, by participating in the writing
and dissemination of the prospectuses, made the misleading state
ments contained in the documents. Before this Court, First Deriva
tive continues to argue that JCM made the statements but seeks to
hold JCG liable only as a control person of JCM under §20(a).
Held: Because the false statements included in the prospectuses were
made by Janus Investment Fund, not by JCM, JCM and JCG cannot
be held liable in a private action under Rule 10b–5. Pp. 5–12.
(a) Although neither Rule 10b–5 nor the statute it interprets,
§10(b) of the Act, expressly creates a private right of action, such an
“action is implied under §10(b).” Superintendent of Ins. of N. Y. v.
Bankers Life & Casualty Co., 404 U. S. 6, 13, n. 9. That holding “re
mains the law,” Stoneridge Investment Partners, LLC v. Scientific
2 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
Syllabus
Atlanta, Inc., 552 U. S. 148, 165, but, in analyzing the question at is
sue, the Court is mindful that it must give “narrow dimensions . . . to
a right . . . Congress did not authorize when it first enacted the stat
ute and did not expand when it revisited” it, id., at 167. Pp. 5–10.
(1) For Rule 10b–5 purposes, the maker of a statement is the
person or entity with ultimate authority over the statement, includ
ing its content and whether and how to communicate it. Without
control, a person or entity can merely suggest what to say, not
“make” a statement in its own right. This rule follows from Central
Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511
U. S. 164, 180, which held that Rule 10b–5’s private right of action
does not include suits against aiders and abettors who contribute
“substantial assistance” to the making of a statement but do not ac
tually make it. Reading “make” more broadly, to include persons or
entities lacking ultimate control over a statement, would substan
tially undermine Central Bank by rendering aiders and abettors al
most nonexistent. The Court’s interpretation is also suggested by
Stoneridge, 552 U. S., at 161, and accords with the narrow scope that
must be given the implied private right of action, id., at 167. Pp. 6–8.
(2) The Court rejects the Government’s contention that “make”
should be defined as “create,” thereby allowing private plaintiffs to
sue a person who provides the false or misleading information that
another person puts into a statement. Adopting that definition would
be inconsistent with Stoneridge, supra, at 161, which rejected a pri
vate Rule 10b–5 suit against companies involved in deceptive trans
actions, even when information about those transactions was later
incorporated into false public statements. First Derivative notes the
uniquely close relationship between a mutual fund and its invest
ment adviser, but the corporate formalities were observed, and reap
portionment of liability in light of this close relationship is properly
the responsibility of Congress, not the courts. Furthermore, First
Derivative’s rule would read into Rule 10b–5 a theory of liability
similar to—but broader than—control-person liability under §20(a).
Pp. 8–10.
(b) Although JCM may have been significantly involved in prepar
ing the prospectuses, it did not itself “make” the statements at issue
for Rule 10b–5 purposes. Its assistance in crafting what was said
was subject to Janus Investment Fund’s ultimate control. Pp. 10–12.
566 F. 3d 111, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. BREYER, J., filed a
dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ.,
joined.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
_________________
No. 09–525
_________________
JANUS CAPITAL GROUP, INC., ET AL., PETITIONERS
v. FIRST DERIVATIVE TRADERS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 13, 2011]
JUSTICE THOMAS delivered the opinion of the Court.
This case requires us to determine whether Janus Capi
tal Management LLC (JCM), a mutual fund investment
adviser, can be held liable in a private action under Secu
rities and Exchange Commission (SEC) Rule 10b–5 for
false statements included in its client mutual funds’ pro
spectuses. Rule 10b–5 prohibits “mak[ing] any untrue
statement of a material fact” in connection with the pur
chase or sale of securities. 17 CFR §240.10b–5 (2010). We
conclude that JCM cannot be held liable because it did not
make the statements in the prospectuses.
I
Janus Capital Group, Inc. (JCG), is a publicly traded
company that created the Janus family of mutual funds.
These mutual funds are organized in a Massachusetts
business trust, the Janus Investment Fund. Janus In
vestment Fund retained JCG’s wholly owned subsidiary,
JCM, to be its investment adviser and administrator. JCG
and JCM are the petitioners here.
Although JCG created Janus Investment Fund, Janus
Investment Fund is a separate legal entity owned entirely
2 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
Opinion of the Court
by mutual fund investors. Janus Investment Fund has no
assets apart from those owned by the investors. JCM
provides Janus Investment Fund with investment advi
sory services, which include “the management and admin
istrative services necessary for the operation of [Janus]
Fun[d],” App. 225a, but the two entities maintain legal
independence. At all times relevant to this case, all of
the officers of Janus Investment Fund were also officers of
JCM, but only one member of Janus Investment Fund’s
board of trustees was associated with JCM. This is more
independence than is required: By statute, up to 60 per
cent of the board of a mutual fund may be composed of
“interested persons.” See 54 Stat. 806, as amended, 15
U. S. C. §80a–10(a); see also 15 U. S. C. A. §80a–2(a)(19)
(2009 ed. and Feb. 2011 Supp.) (defining “interested
person”).
As the securities laws require, Janus Investment Fund
issued prospectuses describing the investment strategy
and operations of its mutual funds to investors. See 15
U. S. C. §§77b(a)(10), 77e(b)(2), 80a–8(b), 80a–2(a)(31),
80a–29(a)–(b). The prospectuses for several funds repre
sented that the funds were not suitable for market timing
and can be read to suggest that JCM would implement
policies to curb the practice.1 For example, the Janus
——————
1 Market timing is a trading strategy that exploits time delay in mu
tual funds’ daily valuation system. The price for buying or selling
shares of a mutual fund is ordinarily determined by the next net asset
value (NAV) calculation after the order is placed. The NAV calculation
usually happens once a day, at the close of the major U. S. markets.
Because of certain time delays, however, the values used in these
calculations do not always accurately reflect the true value of the
underlying assets. For example, a fund may value its foreign securities
based on the price at the close of the foreign market, which may have
occurred several hours before the calculation. But events might have
taken place after the close of the foreign market that could be expected
to affect their price. If the event were expected to increase the price of
the foreign securities, a market-timing investor could buy shares of a
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
Mercury Fund prospectus dated February 25, 2002, stated
that the fund was “not intended for market timing or
excessive trading” and represented that it “may reject any
purchase request . . . if it believes that any combination of
trading activity is attributable to market timing or is
otherwise excessive or potentially disruptive to the Fund.”
App. 141a. Although market timing is legal, it harms
other investors in the mutual fund.
In September 2003, the Attorney General of the State of
New York filed a complaint against JCG and JCM alleging
that JCG entered into secret arrangements to permit
market timing in several funds run by JCM. After the
complaint’s allegations became public, investors withdrew
significant amounts of money from the Janus Investment
Fund mutual funds.2 Because Janus Investment Fund
compensated JCM based on the total value of the funds
and JCM’s management fees comprised a significant
percentage of JCG’s income, Janus Investment Fund’s loss
of value affected JCG’s value as well. JCG’s stock price
fell nearly 25 percent, from $17.68 on September 2 to
$13.50 on September 26.
Respondent First Derivative Traders (First Derivative)
represents a class of plaintiffs who owned JCG stock as of
September 3, 2003. Its complaint asserts claims against
JCG and JCM for violations of Rule 10b–5 and §10(b) of
the Securities Exchange Act of 1934, 48 Stat. 891, as
amended, 15 U. S. C. §78j(b). First Derivative alleges that
JCG and JCM “caused mutual fund prospectuses to be
issued for Janus mutual funds and made them available to
——————
mutual fund at the artificially low NAV and sell the next day when the
NAV corrects itself upward. See Disclosure Regarding Market Timing
and Selective Disclosure of Portfolio Holdings, 68 Fed. Reg. 70402(proposed Dec. 17, 2003).
2 In 2004, JCG and JCM settled these allegations and agreed to re
duce their fees by $125 million and pay $50 million in civil penalties
and $50 million in disgorgement to the mutual fund investors.
4 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
Opinion of the Court
the investing public, which created the misleading impres
sion that [JCG and JCM] would implement measures to
curb market timing in the Janus [mutual funds].” App. to
Pet. for Cert. 60a. “Had the truth been known, Janus
[mutual funds] would have been less attractive to inves
tors, and consequently, [JCG] would have realized lower
revenues, so [JCG’s] stock would have traded at lower
prices.” Id., at 72a.
First Derivative contends that JCG and JCM “materi
ally misled the investing public” and that class members
relied “upon the integrity of the market price of [JCG]
securities and market information relating to [JCG and
JCM].” Id., at 109a. The complaint also alleges that JCG
should be held liable for the acts of JCM as a “controlling
person” under 15 U. S. C. A. §78t(a) (Feb. 2011 Supp.)
(§20(a) of the Act).
The District Court dismissed the complaint for failure to
state a claim.3 In re Mutual Funds Inv. Litigation, 487
F. Supp. 2d 618, 620 (D Md. 2007). The Court of Appeals
for the Fourth Circuit reversed, holding that First Deriva
tive had sufficiently alleged that “JCG and JCM, by par
ticipating in the writing and dissemination of the prospec
tuses, made the misleading statements contained in the
documents.” In re Mutual Funds Inv. Litigation, 566 F. 3d
111, 121 (2009) (emphasis in original). With respect to the
element of reliance, the court found that investors would
infer that JCM “played a role in preparing or approving
the content of the Janus fund prospectuses,” id., at 127,
but that investors would not infer the same about JCG,
——————
3 The elements of a private action under Rule 10b–5 are “(1) a mate
rial misrepresentation or omission by the defendant; (2) scienter; (3) a
connection between the misrepresentation or omission and the pur
chase or sale of a security; (4) reliance upon the misrepresentation or
omission; (5) economic loss; and (6) loss causation.” Stoneridge Invest
ment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 157
(2008).
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
which could be liable only as a “control person” of JCM
under §20(a). Id., at 128, 129–130.
II
We granted certiorari to address whether JCM can be
held liable in a private action under Rule 10b–5 for false
statements included in Janus Investment Fund’s pro
spectuses. 561 U. S. ___ (2010). Under Rule 10b–5, it is
unlawful for “any person, directly or indirectly, . . . [t]o
make any untrue statement of a material fact” in connec
tion with the purchase or sale of securities. 17 CFR
§240.10b–5(b).4 To be liable, therefore, JCM must have
“made” the material misstatements in the prospectuses.
We hold that it did not.5
A
The SEC promulgated Rule 10b–5 pursuant to authority
granted under §10(b) of the Securities Exchange Act of
1934, 15 U. S. C. §78j(b). Although neither Rule 10b–5
nor §10(b) expressly creates a private right of action, this
Court has held that “a private right of action is implied
under §10(b).” Superintendent of Ins. of N. Y. v. Bankers
Life & Casualty Co., 404 U. S. 6, 13, n. 9 (1971). That
holding “remains the law,” Stoneridge Investment Part
——————
4 Rule 10b–5 makes it “unlawful for any person, directly or indirectly,
by the use of any means or instrumentality of interstate commerce, or
of the mails or of any facility of any national securities exchange, . . .
[t]o make any untrue statement of a material fact or to omit to state a
material fact necessary in order to make the statements made, in the
light of the circumstances under which they were made, not misleading
. . . .” 17 CFR §240.10b–5(b).
5 Although First Derivative argued below that JCG violated Rule
10b–5 by making the statements in the prospectuses, it now seeks to
hold JCG liable solely as a control person of JCM under §20(a). The
only question we must answer, therefore, is whether JCM made the
misstatements. Whether First Derivative has stated a claim against
JCG as a control person depends on whether it has stated a claim
against JCM.
6 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
Opinion of the Court
ners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 165
(2008), but “[c]oncerns with the judicial creation of a pri
vate cause of action caution against its expansion,” ibid.Thus, in analyzing whether JCM “made” the statements
for purposes of Rule 10b–5, we are mindful that we must
give “narrow dimensions . . . to a right of action Congress
did not authorize when it first enacted the statute and did
not expand when it revisited the law.” Id., at 167.
1
One “makes” a statement by stating it. When “make” is
paired with a noun expressing the action of a verb, the
resulting phrase is “approximately equivalent in sense” to
that verb. 6 Oxford English Dictionary 66 (def. 59) (1933)
(hereinafter OED); accord, Webster’s New International
Dictionary 1485 (def. 43) (2d ed. 1934) (“Make followed by
a noun with the indefinite article is often nearly equiva
lent to the verb intransitive corresponding to that noun”).
For instance, “to make a proclamation” is the approximate
equivalent of “to proclaim,” and “to make a promise” ap
proximates “to promise.” See 6 OED 66 (def. 59). The
phrase at issue in Rule 10b–5, “[t]o make any . . . state
ment,” is thus the approximate equivalent of “to state.”
For purposes of Rule 10b–5, the maker of a statement is
the person or entity with ultimate authority over the
statement, including its content and whether and how to
communicate it. Without control, a person or entity can
merely suggest what to say, not “make” a statement in its
own right. One who prepares or publishes a statement on
behalf of another is not its maker. And in the ordinary
case, attribution within a statement or implicit from sur
rounding circumstances is strong evidence that a state
ment was made by—and only by—the party to whom it is
attributed. This rule might best be exemplified by the
relationship between a speechwriter and a speaker. Even
when a speechwriter drafts a speech, the content is en
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
tirely within the control of the person who delivers it. And
it is the speaker who takes credit—or blame—for what is
ultimately said.
This rule follows from Central Bank of Denver, N. A. v.
First Interstate Bank of Denver, N. A., 511 U. S. 164(1994), in which we held that Rule 10b–5’s private right of
action does not include suits against aiders and abettors.
See id., at 180. Such suits—against entities that contrib
ute “substantial assistance” to the making of a statement
but do not actually make it—may be brought by the SEC,
see 15 U. S. C. A. §78t(e), but not by private parties. A
broader reading of “make,” including persons or entities
without ultimate control over the content of a statement,
would substantially undermine Central Bank. If persons
or entities without control over the content of a statement
could be considered primary violators who “made” the
statement, then aiders and abettors would be almost
nonexistent.6
This interpretation is further supported by our recent
decision in Stoneridge. There, investors sued “entities
who, acting both as customers and suppliers, agreed to
arrangements that allowed the investors’ company to
mislead its auditor and issue a misleading financial
statement.” 552 U. S., at 152–153. We held that dis
missal of the complaint was proper because the public
——————
6 The dissent correctly notes that Central Bank involved secondary,
not primary, liability. Post, at 4 (opinion of BREYER, J.). But for Cen
tral Bank to have any meaning, there must be some distinction be
tween those who are primarily liable (and thus may be pursued in
private suits) and those who are secondarily liable (and thus may not
be pursued in private suits).
We draw a clean line between the two—the maker is the person or
entity with ultimate authority over a statement and others are not. In
contrast, the dissent’s only limit on primary liability is not much of a
limit at all. It would allow for primary liability whenever “[t]he specific
relationships alleged . . . warrant [that] conclusion”—whatever that
may mean. Post, at 11.
8 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
Opinion of the Court
could not have relied on the entities’ undisclosed deceptive
acts. Id., at 166–167. Significantly, in reaching that
conclusion we emphasized that “nothing [the defendants]
did made it necessary or inevitable for [the company] to
record the transactions as it did.” Id., at 161.7 This em
phasis suggests the rule we adopt today: that the maker of
a statement is the entity with authority over the content
of the statement and whether and how to communicate it.
Without such authority, it is not “necessary or inevitable”
that any falsehood will be contained in the statement.
Our holding also accords with the narrow scope that we
must give the implied private right of action. Id., at 167.
Although the existence of the private right is now settled,
we will not expand liability beyond the person or entity
that ultimately has authority over a false statement.
2
The Government contends that “make” should be de
fined as “create.” Brief for United States as Amicus Cu
riae 14–15 (citing Webster’s New International Dictionary
1485 (2d ed. 1958) (defining “make” as “[t]o cause to exist,
appear, or occur”)). This definition, although perhaps
appropriate when “make” is directed at an object unasso
ciated with a verb (e.g., “to make a chair”), fails to capture
its meaning when directed at an object expressing the
action of a verb.
Adopting the Government’s definition of “make” would
also lead to results inconsistent with our precedent. The
Government’s definition would permit private plaintiffs to
sue a person who “provides the false or misleading infor
mation that another person then puts into the statement.”
——————
7 We agree that “no one in Stoneridge contended that the equipment
suppliers were, in fact, the makers of the cable company’s misstate
ments.” Post, at 8. If Stoneridge had addressed whether the equipment
suppliers were “makers,” today’s decision would be unnecessary. The
point is that Stoneridge’s analysis suggests that they were not.
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
Brief for United States as Amicus Curiae 13.8 But in
Stoneridge, we rejected a private Rule 10b–5 suit against
companies involved in deceptive transactions, even when
information about those transactions was later incorpo
rated into false public statements. 552 U. S., at 161. We
see no reason to treat participating in the drafting of a
false statement differently from engaging in deceptive
transactions, when each is merely an undisclosed act
preceding the decision of an independent entity to make a
public statement.
For its part, First Derivative suggests that the “well
recognized and uniquely close relationship between a
mutual fund and its investment adviser” should inform
our decision. Brief for Respondent 21. It suggests that an
investment adviser should generally be understood to be
the “maker” of statements by its client mutual fund, like
a playwright whose lines are delivered by an actor. We
decline this invitation to disregard the corporate form.
Although First Derivative and its amici persuasively
argue that investment advisers exercise significant influ
——————
8 Because we do not find the meaning of “make” in Rule 10b–5 to be
ambiguous, we need not consider the Government’s assertion that we
should defer to the SEC’s interpretation of the word elsewhere. Brief
for United States as Amicus Curiae 13 (citing Brief for SEC as Amicus
Curiae in Pacific Inv. Mgmt. Co. LLC v. Mayer Brown LLP, No. 09–
1619 (CA2), p. 7); see Christensen v. Harris County, 529 U. S. 576, 588
(2000). We note, however, that we have previously expressed skepti
cism over the degree to which the SEC should receive deference regard
ing the private right of action. See Piper v. Chris-Craft Industries, Inc.,
430 U. S. 1, 41, n. 27 (1977) (noting that the SEC’s presumed expertise
“is of limited value” when analyzing “whether a cause of action should
be implied by judicial interpretation in favor of a particular class of
litigants”). This also is not the first time this Court has disagreed with
the SEC’s broad view of §10(b) or Rule 10b–5. See, e.g., Central Bank of
Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164,
188–191 (1994); Dirks v. SEC, 463 U. S. 646, 666, n. 27 (1983); Ernst &
Ernst v. Hochfelder, 425 U. S. 185, 207 (1976); Blue Chip Stamps v.
Manor Drug Stores, 421 U. S. 723, 746, n. 10 (1975).
10 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
Opinion of the Court
ence over their client funds, see Jones v. Harris Associates
L. P., 559 U. S. ___, ___ (2010) (slip op., at 1–2), it is un
disputed that the corporate formalities were observed
here. JCM and Janus Investment Fund remain legally
separate entities, and Janus Investment Fund’s board of
trustees was more independent than the statute requires.
15 U. S. C. §80a–10.9 Any reapportionment of liability in
the securities industry in light of the close relationship
between investment advisers and mutual funds is properly
the responsibility of Congress and not the courts. More
over, just as with the Government’s theory, First Deriva
tive’s rule would create the broad liability that we rejected
in Stoneridge.
Congress also has established liability in §20(a) for
“[e]very person who, directly or indirectly, controls any
person liable” for violations of the securities laws. 15
U. S. C. A. §78t(a). First Derivative’s theory of liability
based on a relationship of influence resembles the liability
imposed by Congress for control. To adopt First Deriva
tive’s theory would read into Rule 10b–5 a theory of liabil
ity similar to—but broader in application than, see post, at
9—what Congress has already created expressly else
where.10 We decline to do so.
B
Under this rule, JCM did not “make” any of the state
——————
9 Nor does First Derivative contend that any statements made by
JCM to Janus Investment Fund were “public statements” for the
purposes of Basic Inc. v. Levinson, 485 U. S. 224, 227–228 (1988). We
do not address whether and in what circumstances statements would
qualify as “public.” Cf. post, at 12–13 (citing cases involving liability for
statements made to analysts); In re Aetna, Inc. Securities Litigation,
617 F. 3d 272, 275–277 (CA3 2010) (involving allegations that defen
dants “publicly tout[ed]” falsities on analyst conference calls).
10 We do not address whether Congress created liability for entities
that act through innocent intermediaries in 15 U. S. C. A. §78t(b). See
Tr. of Oral Arg. 6, 61.
Cite as: 564 U. S. ____ (2011) 11
Opinion of the Court
ments in the Janus Investment Fund prospectuses; Janus
Investment Fund did. Only Janus Investment Fund—not
JCM—bears the statutory obligation to file the prospec
tuses with the SEC. 15 U. S. C. §§77e(b)(2), 80a–8(b),
80a–29(a)–(b); see also 17 CFR §230.497 (imposing re
quirements on “investment companies”). The SEC has
recorded that Janus Investment Fund filed the prospec
tuses. See JIF Group1 Standalone Prospectuses (Feb. 25,
2002), online at http://www.sec.gov/Archives/edgar/data/
277751 / 000027775102000049 / 0000277751-02-000049.txt
(as visited June 10, 2011, and available in Clerk of Court’s
case file) (recording the “Filer” of the Janus Mercury Fund
prospectus as “Janus Investment Fund”). There is no
allegation that JCM in fact filed the prospectuses and
falsely attributed them to Janus Investment Fund. Nor
did anything on the face of the prospectuses indicate that
any statements therein came from JCM rather than Janus
Investment Fund—a legally independent entity with its
own board of trustees.11
——————
11 First Derivative suggests that “indirectly” in Rule 10b–5 may
broaden the meaning of “make.” We disagree. The phrase “directly or
indirectly” is set off by itself in Rule 10b–5 and modifies not just “to
make,” but also “to employ” and “to engage.” We think the phrase
merely clarifies that as long as a statement is made, it does not matter
whether the statement was communicated directly or indirectly to the
recipient. A different understanding of “indirectly” would, like a broad
definition of “make,” threaten to erase the line between primary viola
tors and aiders and abettors established by Central Bank.
In this case, we need not define precisely what it means to communi
cate a “made” statement indirectly because none of the statements in
the prospectuses were attributed, explicitly or implicitly, to JCM.
Without attribution, there is no indication that Janus Investment Fund
was quoting or otherwise repeating a statement originally “made” by
JCM. Cf. Anixter v. Home-Stake Production Co., 77 F. 3d 1215, 1220, and
n. 4 (CA10 1996) (quoting a signed “ ‘Auditor’s Report’ ” included in a pro
spectus); Basic, supra, at 227, n. 4 (quoting a news item reporting a state
ment by Basic’s president). More may be required to find that a person
or entity made a statement indirectly, but attribution is necessary.
12 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
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Opinion of the Court
First Derivative suggests that both JCM and Janus
Investment Fund might have “made” the misleading
statements within the meaning of Rule 10b–5 because
JCM was significantly involved in preparing the prospec
tuses. But this assistance, subject to the ultimate control
of Janus Investment Fund, does not mean that JCM
“made” any statements in the prospectuses. Although
JCM, like a speechwriter, may have assisted Janus In
vestment Fund with crafting what Janus Investment
Fund said in the prospectuses, JCM itself did not “make”
those statements for purposes of Rule 10b–5.12
* * *
The statements in the Janus Investment Fund prospec
tuses were made by Janus Investment Fund, not by JCM.
Accordingly, First Derivative has not stated a claim
against JCM under Rule 10b–5. The judgment of the
United States Court of Appeals for the Fourth Circuit is
reversed.
It is so ordered.
——————
12 That JCM provided access to Janus Investment Fund’s prospec
tuses on its Web site is also not a basis for liability. Merely hosting a
document on a Web site does not indicate that the hosting entity adopts
the document as its own statement or exercises control over its content.
Cf. United States v. Ware, 577 F. 3d 442, 448 (CA2 2009) (involving the
issuance of false press releases through innocent companies). In doing
so, we do not think JCM made any of the statements in Janus Invest
ment Fund’s prospectuses for purposes of Rule 10b–5 liability, just as
we do not think that the SEC “makes” the statements in the many
prospectuses available on its Web site.
Cite as: 564 U. S. ____ (2011) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–525
_________________
JANUS CAPITAL GROUP, INC., ET AL., PETITIONERS
v. FIRST DERIVATIVE TRADERS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 13, 2011]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
This case involves a private Securities and Exchange
Commission (SEC) Rule 10b–5 action brought by a group
of investors against Janus Capital Group, Inc., and Janus
Capital Management LLC (Janus Management), a firm
that acted as an investment adviser to a family of mutual
funds (collectively, the Janus Fund or Fund). The inves­
tors claim that Janus Management knowingly made mate­
rially false or misleading statements that appeared in
prospectuses issued by the Janus Fund. They say that
they relied upon those statements, and that they suffered
resulting economic harm.
Janus Management and the Janus Fund are closely
related. Each of the Fund’s officers is a Janus Manage­
ment employee. Janus Management, acting through those
employees (and other of its employees), manages the
purchase, sale, redemption, and distribution of the Fund’s
investments. Janus Management prepares, modifies, and
implements the Janus Fund’s long-term strategies. And
Janus Management, acting through those employees,
carries out the Fund’s daily activities.
Rule 10b–5 says in relevant part that it is unlawful for
“any person, directly or indirectly . . . [t]o make any untrue
statement of a material fact” in connection with the pur­
2 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
BREYER, J., dissenting
chase or sale of securities. 17 CFR §240.10b–5(b) (2010)
(emphasis added). See also 15 U. S. C. §78j(b) (§10(b) of
the Securities Exchange Act of 1934). The specific legal
question before us is whether Janus Management can be
held responsible under the Rule for having “ma[d]e” cer­
tain false statements about the Janus Fund’s activities.
The statements in question appear in the Janus Fund’s
prospectuses.
The Court holds that only the Janus Fund, not Janus
Management, could have “ma[d]e” those statements. The
majority points out that the Janus Fund’s board of trus­
tees has “ultimate authority” over the content of the
statements in a Fund prospectus. And in the majority’s
view, only “the person or entity with ultimate authority
over the statement, including its content and whether and
how to communicate it” can “make” a statement within the
terms of Rule 10b–5. Ante, at 6.
In my view, however, the majority has incorrectly inter­
preted the Rule’s word “make.” Neither common English
nor this Court’s earlier cases limit the scope of that
word to those with “ultimate authority” over a statement’s
content. To the contrary, both language and case law
indicate that, depending upon the circumstances, a man­
agement company, a board of trustees, individual company
officers, or others, separately or together, might “make”
statements contained in a firm’s prospectus—even if a
board of directors has ultimate content-related responsi­
bility. And the circumstances here are such that a court
could find that Janus Management made the statements
in question.
I
Respondent’s complaint sets forth the basic elements
of a typical Rule 10b–5 “fraud on the market” claim. It
alleges that Janus Management made statements that
“created the misleading impression that” it “would
Cite as: 564 U. S. ____ (2011) 3
BREYER, J., dissenting
implement measures to curb” a trading strategy called
“market timing.” Second Amended Complaint ¶6 (here­
inafter Complaint), App. to Pet. for Cert. 60a. The
complaint adds that Janus Management knew that these
“market timing” statements were false; that the
statements were material; that the market, in pricing
securities (including related securities) relied upon the
statements; that as a result, when the truth came out
(that Janus Management indeed permitted “market
timing” in the Janus Fund), the price of relevant shares
fell; and the false statements thereby caused respondent
significant economic losses. Complaint ¶¶4–10, id., at
60a–63a. Cf. Stoneridge Investment Partners, LLC v.
Scientific-Atlanta, Inc., 552 U. S. 148, 157 (2008) (identi­
fying the elements of “a typical §10(b) private action”).
The majority finds the complaint fatally flawed,
however, because (1) Rule 10b–5 says that no “person”
shall “directly or indirectly . . . make any untrue statement
of a material fact,” (2) the statements at issue appeared in
the Janus Fund’s prospectuses, and (3) only “the person or
entity with ultimate authority over the statement, includ­
ing its content and whether and how to communicate it”
can “make” a false statement. Ante, at 2–3, 5–6.
But where can the majority find legal support for the
rule that it enunciates? The English language does not
impose upon the word “make” boundaries of the kind the
majority finds determinative. Every day, hosts of corpo­
rate officials make statements with content that more
senior officials or the board of directors have “ultimate
authority” to control. So do cabinet officials make state­
ments about matters that the Constitution places within
the ultimate authority of the President. So do thousands,
perhaps millions, of other employees make statements
that, as to content, form, or timing, are subject to the
control of another.
Nothing in the English language prevents one from
4 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
BREYER, J., dissenting
saying that several different individuals, separately or
together, “make” a statement that each has a hand in
producing. For example, as a matter of English, one can
say that a national political party has made a statement
even if the only written communication consists of uniform
press releases issued in the name of local party branches;
one can say that one foreign nation has made a statement
even when the officials of a different nation (subject to its
influence) speak about the matter; and one can say that
the President has made a statement even if his press
officer issues a communication, sometimes in the press
officer’s own name. Practical matters related to context,
including control, participation, and relevant audience,
help determine who “makes” a statement and to whom
that statement may properly be “attributed,” see ante, at
11, n. 11—at least as far as ordinary English is concerned.
Neither can the majority find support in any relevant
precedent. The majority says that its rule “follows from
Central Bank of Denver, N. A. v. First Interstate Bank of
Denver, N. A., 511 U. S. 164 (1994),” in which the Court
“held that Rule 10b–5’s private right of action does not
include suits against aiders and abettors.” Ante, at 7. But
Central Bank concerns a different matter. And it no more
requires the majority’s rule than free air travel for small
children requires free air travel for adults.
Central Bank is a case about secondary liability, liability
attaching, not to an individual making a false statement,
but to an individual helping someone else do so. Central
Bank involved a bond issuer accused of having made
materially false statements, which overstated the values
of property that backed the bonds. Central Bank also
involved a defendant that was a bank, serving as inden­
ture trustee, which was supposed to check the bond is­
suer’s valuations. The plaintiffs claimed that the bank
delayed its valuation checks and thereby helped the issuer
make its false statements credible. The question before
Cite as: 564 U. S. ____ (2011) 5
BREYER, J., dissenting
the Court concerned the bank’s liability—a secondary
liability for “aiding and abetting” the bond issuer, who (on
the theory set forth) was primarily liable.
The Court made this clear. The question presented was
“whether private civil liability under §10(b) extends . . . to
those who do not engage in the manipulative or deceptive
practice, but who aid and abet the violation.” 511 U. S., at
167 (emphasis added). The Court wrote that “aiding and
abetting liability reaches persons who do not engage in the
proscribed activities at all, but who give a degree of aid to
those who do.” Id., at 176 (emphasis added). The Court
described civil law “aiding and abetting” as “ ‘know[ing]
that the other’s conduct constitutes a breach of duty and
giv[ing] substantial assistance or encouragement to the
other . . . .’ ” Id., at 181 (quoting Restatement (Second) of
Torts §876(b) (1977); emphasis added). And it reviewed a
Court of Appeals decision that had defined the elements of
aiding and abetting as “(1) a primary violation of §10(b);
(2) recklessness by the aider and abettor as to the exis­
tence of the primary violation; and (3) substantial assis
tance given to the primary violator by the aider and abet­
tor.” 511 U. S., at 168 (emphasis added). Faced with this
question, the Court answered that §10(b) and Rule 10b–5
do not provide for this kind of “aiding and abetting” liabil­
ity in private suits.
By way of contrast, the present case is about primary
liability—about individuals who allegedly themselves
“make” materially false statements, not about those who
help others to do so. The question is whether Janus Man­
agement is primarily liable for violating the Act, not
whether it simply helped others violate the Act. The
Central Bank defendant concededly did not make the false
statements in question (others did), while here the defen­
dants allegedly did make those statements. And a rule
(the majority’s rule) absolving those who allegedly did
make false statements does not “follow from” a rule (Cen
6 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
BREYER, J., dissenting
tral Bank’s rule) absolving those who concededly did not
do so.
The majority adds that to interpret the word “make” as
including those “without ultimate control over the content
of a statement” would “substantially undermine” Central
Bank’s holding. Ante, at 7. Would it? The Court in Cen
tral Bank specifically wrote that its holding did
“not mean that secondary actors in the securities
markets are always free from liability under the secu­
rities Acts. Any person or entity, including a lawyer,
accountant, or bank, who employs a manipulative de­
vice or makes a material misstatement (or omission)
on which a purchaser or seller of securities relies may
be liable as a primary violator under 10b–5, assuming
all of the requirements for primary liability under
Rule 10b–5 are met.” 511 U. S., at 191 (some empha­
sis added).
Thus, as far as Central Bank is concerned, depending upon
the circumstances, board members, senior firm officials,
officials tasked to develop a marketing document, large
investors, or others (taken together or separately) all
might “make” materially false statements subjecting
themselves to primary liability. The majority’s rule does
not protect, it extends, Central Bank’s holding of no­
liability into new territory that Central Bank explicitly
placed outside that holding. And by ignoring the language
in which Central Bank did so, the majority’s rule itself
undermines Central Bank. Where is the legal support for
the majority’s “draw[ing] a clean line,” ante, at 7, n. 6, that
so seriously conflicts with Central Bank? Indeed, where is
the legal support for the majority’s suggestion that plain­
tiffs must show some kind of “attribution” of a statement
to a defendant, ante, at 11, n. 11—if it means plaintiffs
must show, not only that the defendant “ma[d]e” the
statement, but something more?
Cite as: 564 U. S. ____ (2011) 7
BREYER, J., dissenting
The majority also refers to Stoneridge, but that case
offers it no help. In Stoneridge, firms that supplied
electronic equipment to a cable television company agreed
with the cable television company to enter into a series of
fraudulent sales and purchases, for example, a sale at an
unusually high price, thereby providing funds which the
suppliers would use to buy advertising from the cable
television company. These arrangements enabled the
cable television company to fool its accountants (and
ultimately the public) into believing that it had more
revenue (for example, advertising revenue) than it really
had. As part of the agreement, the companies exchanged
letters and backdated contracts to conceal the fraud.
Investors subsequently sued the cable television company,
some of its officers, its auditors, and the equipment
suppliers, as well, claiming that all of them had engaged
in a scheme to defraud securities purchasers. In respect to
most of the defendants, investors identified allegedly
materially false statements contained in the cable
television company’s financial statements or similar docu-
ments. But in respect to the equipment suppliers, in­
vestors claimed that the relevant deceptive conduct was
in the letters, backdated contracts, and related oral
conversations about the scheme. The investors argued
that the equipment suppliers, “by participating in the
transactions,” violated §10(b) and Rule 10b–5. Stoneridge,
552 U. S., at 155.
The Court held that the equipment suppliers could not
be found liable for securities fraud in a private suit under
§10(b). But in doing so, it did not deny that the equipment
suppliers had made the false statements contained in the
letters, contracts, and conversations. See id., at 158–159.
Rather, the Court said the issue in the case was whether
“any deceptive statement or act respondents made was not
actionable because it did not have the requisite proximate
relation to the investors’ harm.” Ibid. (emphasis added).
8 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
BREYER, J., dissenting
And it held that these deceptive statements or actions
could not provide a basis for liability because the investors
could not prove sufficient reliance upon the particular
false statements that the equipment suppliers had made.
The Court pointed out that the equipment suppliers
“had no duty to disclose; and their deceptive acts were not
communicated to the public.” Id., at 159. And the Court
went on to say that “as a result,” the investors “cannot
show reliance upon any” of the equipment suppliers’
actions, “except in an indirect chain that we find too
remote for liability.” Ibid. The Court concluded,
“[the equipment suppliers’] deceptive acts, which were
not disclosed to the investing public, are too remote to
satisfy the requirement of reliance. It was [the cable
company], not [the equipment suppliers], that misled
its auditor and filed fraudulent financial statements;
nothing [the equipment suppliers] did made it
necessary or inevitable for [the cable company] to
record the transactions as it did.” Id., at 161.
Insofar as the equipment suppliers’ conduct was at issue,
the fraudulent “arrangement . . . took place in the
marketplace for goods and services, not in the investment
sphere.” Id., at 166.
It is difficult for me to see how Stoneridge “support[s]”
the majority’s rule. Ante, at 7. No one in Stoneridge
disputed the making of the relevant statements, the
fraudulent contracts and the like. And no one in
Stoneridge contended that the equipment suppliers were,
in fact, the makers of the cable company’s misstatements.
Rather, Stoneridge was concerned with whether the
equipment suppliers’ separate statements were sufficiently
disclosed in the securities marketplace so as to be the
basis for investor reliance. They were not. But this is a
different inquiry than whether statements acknowledged
to have been disclosed in the securities marketplace and
Cite as: 564 U. S. ____ (2011) 9
BREYER, J., dissenting
ripe for reliance can be said to have been “ma[d]e” by one
or another actor. How then does Stoneridge support the
majority’s new rule?
The majority adds that its rule is necessary to avoid “a
theory of liability similar to—but broader in application
than”—§20(a)’s liability, for “ ‘[e]very person who, directly
or indirectly, controls any person liable’ ” for violations of
the securities laws. Ante, at 10 (quoting 15 U. S. C. A.
§78t(a) (Feb. 2011 Supp.)). But that is not so. This Court
has explained that the possibility of an express remedy
under the securities laws does not preclude a claim under
§10(b). Herman & MacLean v. Huddleston, 459 U. S. 375,
388 (1983).
More importantly, a person who is liable under §20(a)
controls another “person” who is “liable” for a securities
violation. Morrison v. National Australia Bank Ltd., 561
U. S. ___, ___, n. 2 (2010) (slip op., at 3, n. 2) (“Liability
under §20(a) is obviously derivative of liability under some
other provision of the Exchange Act”). We here examine
whether a person is primarily liable whether they do, or
they do not, control another person who is liable. That is
to say, here, the liability of some “other person” is not at
issue.
And there is at least one significant category of cases
that §10(b) may address that derivative forms of liability,
such as under §20(a), cannot, namely, cases in which one
actor exploits another as an innocent intermediary for its
misstatements. Here, it may well be that the Fund’s
board of trustees knew nothing about the falsity of the
prospectuses. See, e.g., In re Lammert, Release No. 348,
93 S. E. C. Docket 5676, 5700 (2008) (Janus Management
was aware of market timing in the Janus Fund no later
than 2002, but “[t]his knowledge was never shared with
the Board”). And if so, §20(a) would not apply.
The possibility of guilty management and innocent
board is the 13th stroke of the new rule’s clock. What is to
10 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
BREYER, J., dissenting
happen when guilty management writes a prospectus (for
the board) containing materially false statements and
fools both board and public into believing they are true?
Apparently under the majority’s rule, in such circum­
stances no one could be found to have “ma[d]e” a ma-
terially false statement—even though under the common
law the managers would likely have been guilty or liable
(in analogous circumstances) for doing so as principals
(and not as aiders and abettors). See, e.g., 2 W. LaFave,
Substantive Criminal Law §13.1(a) (2d ed. 2003); 1 M.
Hale, Pleas of the Crown 617 (1736); Perkins, Parties to
Crime, 89 U. Pa. L. Rev. 581, 583 (1941) (one is guilty as a
principal when one uses an innocent third party to commit
a crime); Restatement (Second) of Torts §533 (1976). Cf.
United States v. Giles, 300 U. S. 41, 48–49 (1937).
Indeed, under the majority’s rule it seems unlikely that
the SEC itself in such circumstances could exercise the
authority Congress has granted it to pursue primary
violators who “make” false statements or the authority
that Congress has specifically provided to prosecute aiders
and abettors to securities violations. See §104, 109 Stat.
757 (codified at 15 U. S. C. A. §78t(e) (Feb. 2011 Supp.))
(granting SEC authority to prosecute aiders and abettors).
That is because the managers, not having “ma[d]e” the
statement, would not be liable as principals and there
would be no other primary violator they might have
tried to “aid” or “abet.” Ibid.; SEC v. DiBella, 587 F. 3d
553, 566 (CA2 2009) (prosecution for aiding and abet-
ting requires primary violation to which offender gave
“substantial assistance” (internal quotation marks
omitted)).
If the majority believes, as its footnote hints, that §20(b)
could provide a basis for liability in this case, ante, at 10,
n. 10, then it should remand the case for possible amend­
ment of the complaint. “There is a dearth of authority
construing Section 20(b),” which has been thought largely
Cite as: 564 U. S. ____ (2011) 11
BREYER, J., dissenting
“superfluous in 10b–5 cases.” 5B A. Jacobs, Disclosure
and Remedies Under the Securities Law §11–8, p. 11–72
(2011). Hence respondent, who reasonably thought that it
referred to the proper securities law provision, is faultless
for failing to mention §20(b) as well.
In sum, I can find nothing in §10(b) or in Rule 10b–5, its
language, its history, or in precedent suggesting that
Congress, in enacting the securities laws, intended a
loophole of the kind that the majority’s rule may well
create.
II
Rejecting the majority’s rule, of course, does not decide
the question before us. We must still determine whether,
in light of the complaint’s allegations, Janus Management
could have “ma[d]e” the false statements in the
prospectuses at issue. In my view, the answer to this
question is “Yes.” The specific relationships alleged
among Janus Management, the Janus Fund, and the
prospectus statements warrant the conclusion that Janus
Management did “make” those statements.
In part, my conclusion reflects the fact that this Court
and lower courts have made clear that at least sometimes
corporate officials and others can be held liable under Rule
10b–5 for having “ma[d]e” a materially false statement
even when that statement appears in a document (or is
made by a third person) that the officials do not legally
control. In Herman & MacLean, for example, this Court
pointed out that “certain individuals who play a part in
preparing the registration statement,” including corporate
officers, lawyers, and accountants, may be primarily liable
even where “they are not named as having prepared or
certified” the registration statement. 459 U. S., at 386, n.
22. And as I have already pointed out, this Court wrote in
Central Bank that a “lawyer, accountant, or bank, who . . .
makes a material misstatement (or omission) on which a
12 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
TRADERS
BREYER, J., dissenting
purchaser or seller of securities relies may be liable as a
primary violator under 10b–5, assuming all of the re­
quirements for primary liability under Rule 10b–5 are
met.” 511 U. S., at 191 (some emphasis added).
Given the statements in our opinions, it is not surpris­
ing that lower courts have found primary liability for
actors without “ultimate authority” over issued state­
ments. One court, for example, concluded that an ac­
countant could be primarily liable for having “ma[d]e”
false statements, where he issued fraudulent opinion and
certification letters reproduced in prospectuses, annual
reports, and other corporate materials for which he was
not ultimately responsible. Anixter v. Home-Stake
Production Co., 77 F. 3d 1215, 1225–1227 (CA10 1996). In
a later case postdating Stoneridge, that court reaffirmed
that an outside consultant could be primarily liable for
having “ma[d]e” false statements, where he drafted
fraudulent quarterly and annual filing statements later
reviewed and certified by the firm’s auditor, officers, and
counsel. SEC v. Wolfson, 539 F. 3d 1249, 1261 (CA10
2008). And another court found that a corporation’s chief
financial officer could be held primarily liable as having
“ma[d]e” misstatements that appeared in a form 10–K
that she prepared but did not sign or file. McConville v.
SEC, 465 F. 3d 780, 787 (CA7 2006).
One can also easily find lower court cases explaining
that corporate officials may be liable for having “ma[d]e”
false statements where those officials use innocent
persons as conduits through which the false statements
reach the public (without necessarily attributing the false
statements to the officials). See, e.g., In re Navarre Corp.
Securities Litigation, 299 F. 3d 735, 743 (CA8 2002) (liabil­
ity may be premised on use of analysts as a conduit to
communicate false statements to market); In re Cabletron
Systems, Inc., 311 F. 3d 11, 38 (CA1 2002) (rejecting a test
requiring legal “control” over third parties making state­
Cite as: 564 U. S. ____ (2011) 13
BREYER, J., dissenting
ments as giving “company officials too much leeway to
commit fraud on the market by using analysts as their
mouthpieces” (internal quotation marks omitted)); Novak
v. Kasaks, 216 F. 3d 300, 314–315 (CA2 2000); Cooper v.
Pickett, 137 F. 3d 616, 624 (CA9 1997); Freeland v. Irid
ium World Communications, Ltd., 545 F. Supp. 2d 59, 75–
76 (DC 2008).
My conclusion also reflects the particular circumstances
that the complaint alleges. The complaint states that
“Janus Management, as investment advisor to the funds,
is responsible for the day-to-day management of its
investment portfolio and other business affairs of the
funds. Janus Management furnishes advice and recom­
mendations concerning the funds’ investments, as well as
administrative, compliance and accounting services for the
funds.” Complaint ¶18, App. to Pet. for Cert. 65a. Each of
the Fund’s 17 officers was a vice president of Janus
Management. App. 250a–258a. The Fund has “no assets
separate and apart from those they hold for shareholders.”
In re Mutual Funds Inv. Litigation, 384 F. Supp. 2d 845,
853, n. 3 (Md. 2005). Janus Management disseminated
the fund prospectuses through its parent company’s Web
site. Complaint ¶38, App. to Pet. for Cert. 72a. Janus
Management employees drafted and reviewed the Fund
prospectuses, including language about “market timing.”
Complaint ¶31, id., at 69a; In re Mutual Funds Inv.
Litigation, 590 F. Supp. 2d 741, 747 (Md. 2008). And
Janus Management may well have kept the trustees in the
dark about the true “market timing” facts. Complaint
¶51, App. to Pet. for Cert. 80a; In re Lammert, 93 S. E. C.
Docket, at 5700.
Given these circumstances, as long as some managers,
sometimes, can be held to have “ma[d]e” a materially false
statement, Janus Management can be held to have done
so on the facts alleged here. The relationship between
Janus Management and the Fund could hardly have been
14 JANUS CAPITAL GROUP, INC. v. FIRST DERIVATIVE
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BREYER, J., dissenting
closer. Janus Management’s involvement in preparing
and writing the relevant statements could hardly have
been greater. And there is a serious suggestion that the
board itself knew little or nothing about the falsity of what
was said. See supra, at 9, 13. Unless we adopt a formal
rule (as the majority here has done) that would arbitrarily
exclude from the scope of the word “make” those who
manage a firm—even when those managers perpetrate a
fraud through an unknowing intermediary—the man-
agement company at issue here falls within that scope.
We should hold the allegations in the complaint in this
respect legally sufficient.
With respect, I dissent.