James C. Sell v. Hon. gama/squire & Company

SUPREME COURT OF ARIZONA
En Banc
JAMES C. SELL, Trustee of the ) Arizona Supreme Court
Participating Trust established ) No. CV-12-0211-PR
under Debtors’ First Amended )
Joint Plan of Reorganization ) Court of Appeals
dated 7-7-06 in U.S. Bankruptcy ) Division One
Case No. 05-27993-PHX-GBN, on ) No. 1 CA-SA 12-0105
behalf of the Trust’s )
Participating Investors, ) Maricopa County
) Superior Court
Petitioner, ) No. CV2007-005734
)
v. )
)
THE HONORABLE J. RICHARD GAMA, ) O P I N I O N
JUDGE OF THE SUPERIOR COURT OF )
THE STATE OF ARIZONA, in and for )
the County of Maricopa, )
)
Respondent Judge, )
)
SQUIRE & COMPANY, PC, a )
Utah professional corporation; )
LYNN G. HILLSTEAD and JANE DOE )
HILLSTEAD, husband and wife; )
DWAYNE ASAY and JANE DOE ASAY, )
husband and wife; LEWIS AND ROCA, )
LLP, an Arizona limited )
liability partnership; KEITH )
BEAUCHAMP and JULIET LIM, )
husband and wife, )
)
Real Parties in Interest. )
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable J. Richard Gama, Judge
AFFIRMED
________________________________________________________________
Order of the Court of Appeals Division One
Filed May 10, 2012
________________________________________________________________
SHERMAN & HOWARD LLC Phoenix
By Robert C. Hackett
Thomas M. Quigley
David W. Garbarino
Jamey G. Anderson
Attorneys for James C. Sell
PERKINS COIE LLP Phoenix
By H. Michael Clyde
Todd R. Kerr
Tony Caliendo
Attorneys for Squire & Company, PC, Lynn G. Hillstead,
Jane Doe Hillstead, Dwayne Asay, and Jane Doe Asay
OSBORN MALEDON PA Phoenix
By William J. Maledon
Geoffrey M. T. Sturr
Thomas L. Hudson
James K. Rogers
Attorneys for Lewis and Roca LLP, Keith Beauchamp, and
Juliet Lim
ARIZONA CORPORATION COMMISSION Phoenix
By Matthew J. Neubert
Julie A. Coleman
Attorneys for Amicus Curiae Arizona Corporation Commission
BEGAM & MARKS PA Phoenix
By Stanley J. Marks
Attorney for Amicus Curiae Public Justice, PC
MITCHELL & ASSOCIATES Phoenix
By Sarah K. Deutsch
And
TIFFANY & BOSCO PA Phoenix
By Richard G. Himelrick
Attorneys for Amicus Curiae Mortgages Ltd. Investors
________________________________________________________________
P E L A N D E R, Justice
¶1 We granted review to determine whether the Arizona
Securities Act (“ASA”), A.R.S. §§ 44-1801 to -2126, authorizes a
2
cause of action for secondary liability based on aiding and
abetting others’ primary securities fraud. More than three
decades ago, based on federal case law that has since changed,
we recognized such aiding and abetting claims. State v.
Superior Court (Davis), 123 Ariz. 324, 599 P.2d 777 (1979),
overruled in part on other grounds by State v. Gunnison, 127
Ariz. 110, 618 P.2d 604 (1980). But in light of Central Bank of
Denver v. First Interstate Bank of Denver, 511 U.S. 164 (1994),
and finding no compelling reason to depart from that case, we
hold that a separate claim for aiding and abetting does not
exist under the ASA, overruling Davis’s contrary holding.
I.
¶2 James C. Sell is the trustee of a trust created to
recover losses suffered by investors in an allegedly fraudulent
investment scheme known as Mathon Fund, LLC. Sell filed this
action under the ASA against various persons and entities that
directly participated in the scheme, as well as others who
allegedly assisted by rendering professional services. This
latter category of defendants included an accounting firm,
Squire and Company (“Squire”), the law firm of Lewis and Roca,
and several of those firms’ employees. Sell’s multi-count
complaint alleged that those professional defendants were
primarily liable for securities fraud under A.R.S. §§ 44-1991
and -2003 (Count One), and secondarily liable for aiding and
3
abetting others’ statutory violations (Count Two). 1
¶3 In 2008, Superior Court Judge Janet Barton dismissed
Count One against the Lewis and Roca defendants and both counts
against Squire, finding no legal basis for the Count Two claim
because the ASA does not expressly “create aiding and abetting
liability” for securities fraud, and because Central Bank
overturned the federal case law on which Davis had relied.
After Judge Barton rotated off the case and Superior Court Judge
Douglas Rayes was assigned, Sell moved for reconsideration.
Judge Rayes granted that motion as to Count Two, ruling that our
decision in Davis was still controlling law, even if Central
Bank called its reasoning into question.
¶4 In 2011, Squire, joined by Lewis and Roca, moved for
summary judgment on the aiding and abetting claim, arguing that
the ASA did not create such secondary liability. 2 Superior Court
Judge Richard Gama, who then presided over the case, granted the
motion. The judge acknowledged that Davis had not been
overruled, but found “nothing to suggest [that this Court] will
deviate from Central Bank when it does confront the issue.”
¶5 Without comment, the court of appeals declined
1
We refer throughout this opinion to Sell’s third-amended
complaint.
2
Squire has since settled with Sell and is no longer a party
to this action. Only the Lewis and Roca defendants remain in
the proceedings before us.
4
jurisdiction over Sell’s special action petition. Although the
case is in an interlocutory posture, we granted review because
whether aiding and abetting liability exists under the ASA is a
recurring legal question of statewide importance on which lower
courts are divided. We have jurisdiction under Article 6,
Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.
II.
¶6 Enacted in 1951, the ASA makes it illegal for any
person, “directly or indirectly,” to commit any of the following
securities-related acts or omissions:
1. Employ any device, scheme or artifice to defraud.
2. Make any untrue statement of material fact, or
omit to state any material fact necessary in order to
make the statements made, in the light of the
circumstances under which they were made, not
misleading.
3. Engage in any transaction, practice or course of
business which operates or would operate as a fraud or
deceit.
A.R.S. § 44-1991(A).
¶7 That statute is “almost identical to the antifraud
provisions of the 1933 Securities Act [§ 17(a)], 15
U.S.C. § 77q.” Davis, 123 Ariz. at 331, 599 P.2d at 784. But
unlike the 1933 Act, which “contains no express private cause of
action,” “the ASA explicitly provides for a private cause of
action for violations of § 44-1991 in [A.R.S.] § 44-2001(A).”
Grand v. Nacchio, 225 Ariz. 171, 174 ¶ 12, 236 P.3d 398, 401
5
(2010). And Arizona’s private cause of action “may be pursued
against ‘any person, including any dealer, salesman or agent,
who made, participated in or induced the unlawful sale or
purchase.’” Id. ¶ 13 (quoting A.R.S. § 44-2003(A)). 3 The
federal act contains no such language.
¶8 “The legislature intended the ASA ‘as a remedial
measure’ for the ‘protection of the public’ and therefore
specified that the act be ‘liberally construed.’” Id. ¶ 16
(quoting 1951 Ariz. Sess. Laws, ch. 18, § 20 (1st Reg. Sess.)).
The ASA’s language “confirms a broad intent to sanction
wrongdoing in connection with the purchase or sale of
securities.” Id.
¶9 In Davis, 123 Ariz. at 331–32, 334, 599 P.2d at 784–
85, 787, we found actionable the plaintiffs’ claims that certain
defendants aided and abetted securities fraud under the ASA,
3
In 1996, the Arizona Legislature amended several sections
of the ASA and added to § 44-2003(A) the following exception,
which has no federal counterpart: “No person shall be deemed to
have participated in any sale or purchase solely by reason of
having acted in the ordinary course of that person’s
professional capacity in connection with that sale or purchase.”
A.R.S. § 44-2003(A); see 1996 Ariz. Sess. Laws, ch. 197, § 3
(2nd Reg. Sess.). The Lewis and Roca defendants suggest that
this exception applies to shield them from liability. We need
not address that argument, however, because we find not
actionable the aiding and abetting allegation in Count Two, the
only claim at issue here.
6
§ 44-1991. 4 We relied exclusively on two federal district court
decisions that had interpreted § 17(a) of the 1933 Securities
Act, 15 U.S.C. § 77q(a), and § 10(b) of the 1934 Securities
Exchange Act, 15 U.S.C. § 78j(b), to recognize some form of
aiding and abetting liability for securities fraud. Davis, 123
Ariz. at 331-32, 599 P.2d at 784-85 (citing SEC v. Nat’l Student
Mktg. Corp., 402 F. Supp. 641 (D.D.C. 1975); SEC v. Scott Taylor
& Co., 183 F. Supp. 904 (S.D.N.Y. 1959)).
¶10 Davis neither analyzed the federal cases it cited nor
evaluated whether § 44-1991 or any other section of the ASA
independently authorized aiding and abetting liability. Rather,
because the federal and state statutory schemes were “almost
identical,” and federal cases held that “[a] defendant who aids
and abets another’s violation respecting the use of manipulative
or deceptive devices in the sale of stock . . . [was] liable as
a principal,” we saw “no reason why one who aids and abets
another in violating A.R.S. § 44-1991 should not also be held
liable as a principal.” Id. at 331, 599 P.2d at 784.
¶11 A year later, we revisited and overruled Davis to the
extent it required scienter in an action under what is now § 44-
1991(A)(2). See Gunnison, 127 Ariz. at 112-13, 618 P.2d at 606-
07. We did so because, after Davis, the United States Supreme
4
In Davis, this Court referred to provisions now codified in
§ 44-1991(A).
7
Court held in Aaron v. SEC, 446 U.S. 680, 701-02 (1980), that
scienter is not an element for an action under § 17(a)(2) of the
1933 Act. Gunnison, 127 Ariz. at 113, 618 P.2d at 607.
¶12 In support of our holding in Gunnison, this Court
noted that “[u]nless there is a good reason for deviating from
the United States Supreme Court’s interpretation, we will follow
the reasoning of that court in interpreting sections of our
statutes which are identical or similar to federal securities
statutes.” Id. at 112–13, 618 P.2d at 606–07. Although not
required to do so, we nonetheless found it “helpful, for
consistency in the application of the law, to be harmonious with
the United States Supreme Court.” Id. at 112, 618 P.2d at 606.
¶13 Fifteen years after Davis, the United States Supreme
Court held in Central Bank that “a private plaintiff may not
maintain an aiding and abetting suit under § 10(b)” of the 1934
Act. 511 U.S. at 191. The Court found no express authorization
for such claims in the act itself and no good reason to
judicially imply potential liability for aiding and abetting
when Congress had not seen fit to do so. Id. at 175-90.
Rejecting the notion that “the phrase ‘directly or indirectly’
in the text of § 10(b) covers aiding and abetting,” the Court
pointed out that “aiding and abetting liability extends beyond
persons who engage, even indirectly, in a proscribed activity;
aiding and abetting liability reaches persons who do not engage
8
in the proscribed activities at all, but who give a degree of
aid to those who do.” Id. at 175-76.
¶14 In Central Bank, the Court found its “role limited
when the issue is the scope of conduct prohibited by the
statute,” and therefore “adhere[d] to the statutory text in
resolving it.” Id. at 187-88. And, the Court noted, the issue
“is not whether imposing private civil liability on aiders and
abettors is good policy but whether aiding and abetting is
covered by the statute.” Id. at 177. The statutory scheme, the
Court said, cannot be judicially amended “to create liability
for acts that are not themselves manipulative or deceptive
within the meaning of the statute,” and “[p]olicy considerations
cannot override” the statute’s text and structure. Id. at 177-
78, 188.
¶15 When the Arizona Legislature amended the ASA in 1996,
after both Davis and Central Bank, it expressly declined to
specify whether aiding and abetting liability exists under the
ASA. 1996 Ariz. Sess. Laws, ch. 197, § 11(B) (2nd Reg. Sess.)
(“Nothing in this act . . . determines whether or in what
circumstances aiding and abetting liability exists under Title
44, chapter 12, Arizona Revised Statutes.”). Thus, the
legislature neither approved nor rejected either case,
apparently deferring to the judiciary the question of whether a
cause of action for aiding and abetting a violation of the ASA
9
exists. This Court recently acknowledged, but did not decide,
that issue in Grand, 225 Ariz. at 177 ¶ 31, 236 P.3d at 404. It
is squarely before us now.
III.
¶16 “Our goal in interpreting statutes is to give effect
to the intent of the legislature.” Estate of Braden ex rel.
Gabaldon v. State, 228 Ariz. 323, 325 ¶ 8, 266 P.3d 349, 351
(2011) (internal quotation marks omitted). “When the plain text
of a statute is clear and unambiguous,” it controls unless an
absurdity or constitutional violation results. State v.
Christian, 205 Ariz. 64, 66 ¶ 6, 66 P.3d 1241, 1243 (2003). But
when, as here, the “text alone does not resolve the parties’
dispute,” we must “attempt to glean and give effect to the
legislature’s intent, considering the statute’s context, effects
and consequences, and spirit and purpose.” Am. Family Mut. Ins.
Co. v. Sharp, 229 Ariz. 487, 490-91 ¶ 10, 277 P.3d 192, 195-96
(2012).
¶17 As noted above, the legislature expressly intended to
omit from the ASA any mention of aiding and abetting liability.
Thus, the ASA does not expressly authorize such claims or
liability. Although the issue here does not require us to
delineate the precise boundaries of securities fraud under § 44-
1991(A), that statute’s text tracks the language of SEC Rule
10b-5, 17 C.F.R. § 240.10b-5, and of § 17(a) of the 1933 Act, 15
10
U.S.C. § 77q(a). See Grand, 225 Ariz. at 173–74 ¶ 11, 236 P.3d
at 400–01. Sell has not established any meaningful difference
between a claim under § 44-1991(A) and one under those federal
laws or under § 10(b) of the 1934 Act, the provision at issue in
Central Bank.
¶18 In interpreting a state statutory scheme such as the
ASA, this Court will give less weight and not necessarily defer
to federal case law that construes a parallel federal statute
when the state and federal statutory provisions or their
underlying policies materially differ. See Bunker’s Glass Co.
v. Pilkington PLC, 206 Ariz. 9, 12-13 ¶¶ 8, 13, 75 P.3d 99, 102-
03 (2003) (declining “to rigidly follow federal precedent on
every issue of antitrust law regardless of whether differing
concerns and interests exist in the state and federal systems,”
and because doing so would “thwart[] the [Arizona] legislative
intent” and would not necessarily achieve uniformity); cf.
Gunnison, 127 Ariz. at 112–13, 618 P.2d at 606–07. Because we
find no such substantial differences here, however, we will
interpret the ASA by following settled federal securities law
unless there is a good reason to depart from that authority.
Gunnison, 127 Ariz. at 112–13, 618 P.2d at 606–07. This
approach is consistent with the legislature’s intent, as
expressed in 1996, regarding judicial interpretation of the ASA.
1996 Ariz. Sess. Laws, ch. 197, § 11(C) (2nd Reg. Sess.) (“It is
11
the intent of the legislature that in construing the [ASA], the
courts may use as a guide the interpretations given by the . . .
federal or other courts in construing substantially similar
provisions in the federal securities laws of the United
States.”).
¶19 Although we are not bound by Central Bank in
determining an issue of state statutory law, we find that case
persuasive support for rejecting aiding and abetting liability
under the ASA. Much of the Supreme Court’s reasoning in Central
Bank regarding the federal statute and congressional intent
applies with equal force to the ASA and the Arizona
Legislature’s intent.
¶20 As noted above, the legislature did not expressly
authorize secondary liability for aiding and abetting in either
the sections setting forth the types of actionable fraudulent
practices under the Act, A.R.S. §§ 44-1991 to -2000, or the
sections prescribing the civil remedies and potential parties
who may be sued for securities fraud, id. §§ 44-2001 to -2005. 5
No ASA provision mentions the terms “aiding” or “abetting.” See
Cent. Bank, 511 U.S. at 177 (“If . . . Congress intended to
impose aiding and abetting liability, we presume it would have
5
As amicus curiae Arizona Corporation Commission
acknowledges: “The [ASA] does not expressly provide for a cause
of action against a secondary actor for aiding and abetting the
primary violation of the Act by another person.”
12
used the words ‘aid’ and ‘abet’ in the statutory text. But it
did not.”).
¶21 In contrast, the legislature has expressly recognized
aiding and abetting liability in other statutes. See, e.g.,
A.R.S. § 12-812 (aiding and abetting liability for violating
public nuisance obscenity statutes); id. § 20-463(A)(5)
(assisting and abetting insurance fraud); id. § 32-1055(D)(5)
(aiding and abetting liability for collection agencies); id.
§ 46-215(A)(3) (aiding and abetting welfare fraud). As the
Court in Central Bank remarked, Congress “has taken a statute-
by-statute approach to civil aiding and abetting liability” and
“has been quite explicit in imposing [such] liability in other
instances.” 511 U.S. at 182-83. The same can be said of the
Arizona Legislature which, like Congress, surely knows “how to
impose aiding and abetting liability when it [chooses] to do
so.” Id. at 176. As did the Court in Central Bank, we find it
“not plausible to interpret the statutory silence as tantamount
to an implicit [legislative] intent to impose . . . aiding and
abetting liability.” Id. at 185; cf. Estate of Braden, 228
Ariz. at 327-28 ¶ 16, 266 P.3d at 353-54 (explaining that when a
statute specifically limits those who may be held liable for the
statutorily proscribed conduct, liability cannot be extended
beyond the statutory categories).
¶22 Despite the notable absence in the ASA of express
13
authorization for aiding and abetting claims, Sell argues that
we should reject Central Bank’s reasoning and conclusion because
different policy objectives underlie the ASA and federal
securities laws. He correctly notes that, from its inception,
the ASA was intended to be remedial, protective of the public,
and liberally construed. See supra ¶ 8. In contrast, some
authority suggests that, although Congress crafted the 1933 and
1934 Acts to protect investors, the central purpose of those
acts is to ensure full disclosure and honest markets. Reves v.
Ernst & Young, 494 U.S. 56, 60 (1990); Ernst & Ernst v.
Hochfelder, 425 U.S. 185, 194–95 (1976).
¶23 But even if we accept Sell’s assertion that the
primary purposes of the ASA and the federal securities acts are
somehow different, his argument that we should depart from
Central Bank is unpersuasive. “A liberal construction is not
synonymous with a generous interpretation, and we will not
impose a burden or liability not within the terms or spirit of
the law.” Estate of Braden, 228 Ariz. at 325 ¶ 9, 266 P.3d at
351 (internal quotation marks, citations, and alterations
omitted). Because § 44-2001(A), unlike federal securities law,
expressly provides a private cause of action for violations of
§ 44-1991(A), Grand, 225 Ariz. at 174 ¶ 12, 236 P.3d at 401, the
legislature, not the courts, should define the scope of
liability under that statutory scheme. In short, we decline to
14
judicially recognize potential securities-related claims that
are not clearly established or necessarily implied by the ASA.
¶24 Sell also contends that § 44-2003’s language is broad
enough to include aiding and abetting liability, even though not
expressly stated. As he points out, that statute has no federal
counterpart and permits an action to be brought under § 44-2001
against “any person . . . who made, participated in or induced
the unlawful sale or purchase [of securities].” A.R.S. § 44-
2003(A) (emphasis added).
¶25 That language, however, supports a claim for primary
liability under § 44-1991; it does not create a separate cause
of action for, or secondary liability based on, aiding and
abetting. According to Sell, the Lewis and Roca defendants
“participated in” the alleged securities violations within the
meaning of § 44-2003(A). See Grand, 225 Ariz. at 175 ¶ 21, 236
P.3d at 402 (citing Standard Chartered PLC v. Price Waterhouse,
190 Ariz. 6, 21–22, 945 P.2d 317, 332–33 (App. 1996)). If so,
Sell’s claim is for primary liability under § 44-1991, 6 arguably
rendering his aiding and abetting claim superfluous — a point
Sell conceded at oral argument but which we need not decide.
¶26 Sell also argues that even though the ASA does not
6
Although the superior court dismissed Sell’s Count One
claim for primary liability, that ruling apparently has not been
reduced to a final judgment and is not at issue before us.
15
expressly authorize an aiding and abetting claim, we should
apply common law principles to recognize one. Although the
ASA’s remedy provisions do not limit “any statutory or common
law right of any person in any court for any act involved in the
sale of securities,” A.R.S. § 44-2005, Sell would have us
superimpose a common law aiding and abetting claim on the ASA’s
purely statutory provisions. We decline to do so.
¶27 Aiding and abetting liability perhaps is most commonly
applied under Arizona’s criminal code. See A.R.S. §§ 13-301 to
-304. Our courts have also recognized certain forms of civil
liability for aiding and abetting in torts. For example, we
have noted that “Arizona recognizes aiding and abetting as
embodied in Restatement [(Second) of Torts] § 876(b),” and “a
person who aids and abets a tortfeasor is himself liable for the
resulting harm to a third person.” Wells Fargo Bank v. Ariz.
Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust
Fund, 201 Ariz. 474, 485 ¶ 31, 38 P.3d 12, 23 (2002). Thus, as
a matter of common law, our courts have recognized aiding and
abetting liability in various tort-related contexts. Chalpin v.
Snyder, 220 Ariz. 413, 417 ¶¶ 13-14, 424 ¶ 45, 207 P.3d 666,
670, 677 (App. 2008) (multiple tort claims against an attorney);
Sec. Title Agency, Inc. v. Pope, 219 Ariz. 480, 491 ¶¶ 44–46,
200 P.3d 977, 988 (App. 2008) (breach of fiduciary duty); Dawson
v. Withycombe, 216 Ariz. 84, 102 ¶¶ 49-50, 163 P.3d 1034, 1052
16
(App. 2007) (fraud).
¶28 But those decisions do not persuade, let alone compel,
us to extend common law aiding and abetting liability to the
ASA. As discussed above, unlike § 17(a) and § 10(b) of the
federal securities acts, the ASA, § 44-2001(A), expressly
authorizes a private cause of action for violations of § 44-
1991(A). Grand, 225 Ariz. at 174 ¶ 12, 236 P.3d at 401; cf.
Cent. Bank, 511 U.S. at 179 (“From the fact that Congress did
not attach private aiding and abetting liability to any of the
express causes of action in the securities Acts, we can infer
that Congress likely would not have attached aiding and abetting
liability to § 10(b) had it provided a private § 10(b) cause of
action.”). In addition, the ASA prescribes the available
remedies and categories of potential defendants, and articulates
the “elements of securities fraud.” Aaron v. Fromkin, 196 Ariz.
224, 227 ¶ 13, 994 P.2d 1039, 1042 (App. 2000) (citing A.R.S.
§ 44-1991(A)(2)).
¶29 Accordingly, it would be inappropriate to anchor a
finding of aiding and abetting liability under the ASA on common
law tort principles. See Cent. Bank, 511 U.S. at 177, 184; cf.
Mann v. GTCR Golder Rauner, L.L.C., 483 F. Supp. 2d 884, 919 (D.
Ariz. 2007) (declining to extend aiding and abetting liability
found under Restatement § 876(b) to statutory violations of
Arizona’s Uniform Fraudulent Transfer Act). Instead, we think
17
it is more appropriate for the legislature, if it chooses, to
expressly provide for any such claim. Cf. State ex rel. Horne
v. Autozone, Inc., 229 Ariz. 358, 363 ¶ 22, 273 P.3d 1278, 1283
(2012) (when a statutory scheme includes certain remedies, a
remedy not included “should not be read by the courts into the
existing statute”). In that regard, the various policy
arguments advanced by Sell and certain amici for preserving
aiding and abetting liability under the ASA are better directed
to the legislature. See Cent. Bank, 511 U.S. at 177, 188-89
(noting competing policy arguments for and against aiding and
abetting liability under the federal securities acts, but
framing the issue as whether such liability is covered by the
statute, not whether it is good policy).
¶30 We are mindful of the importance of stare decisis, and
how that doctrine demands caution in overruling a prior
decision, especially given the high burden of departing from
previous interpretations of a statute. State v. Hickman, 205
Ariz. 192, 201 ¶ 38, 68 P.3d 418, 427 (2003). But, adhering to
the approach set forth in Gunnison and approved in the 1996
legislation, we find sufficient justification to follow Central
Bank and overrule Davis, which was based solely on federal case
law that has since changed. 7
7
After Central Bank, the two federal district courts whose
decisions we followed in Davis rejected aiding and abetting
18
¶31 Finally, we note that the superior court erred by
anticipating that we would revisit and overrule Davis after
Central Bank. The lower courts are bound by our decisions, and
this Court alone is responsible for modifying that precedent.
State v. Smyers, 207 Ariz. 314, 318 ¶ 15 n.4, 86 P.3d 370, 374
n.4 (2004); see also McKay v. Indus. Comm’n, 103 Ariz. 191, 193,
438 P.2d 757, 759 (1968) (“Whether prior decisions of the
highest court in a state are to be disaffirmed is a question for
the court which makes the decisions. Any other rule would lead
to chaos in our judicial system.”). Trial courts are required
to follow the decisions of a higher court, and the superior
court here failed to abide by that fundamental principle. We
therefore caution lower courts not to depart from binding
precedent anticipating that we will overrule existing case law.
IV.
¶32 For the reasons stated above, we overrule Davis to the
extent that it recognizes a cause of action for aiding and
claims under federal securities laws. In re Parmalat Sec.
Litig., 383 F. Supp. 2d 616, 624 (S.D.N.Y. 2005); Lindblom v.
Mobile Telecomms. Techs. Corp., 985 F. Supp. 161, 163 (D.D.C.
1997). Other courts have also refused to judicially imply
aiding and abetting claims under state securities laws when the
relevant statutes do not expressly authorize such liability.
See, e.g., Conn. Nat. Bank v. Giacomi, 659 A.2d 1166, 1177
(Conn. 1995); Atlanta Skin & Cancer Clinic, P.C. v. Hallmark
Gen. Partners, Inc., 463 S.E.2d 600, 604 (S.C. 1995); cf. State
ex rel. Goettsch v. Diacide Distribs., Inc., 561 N.W.2d 369, 374
(Iowa 1997) (recognizing aiding and abetting liability based on
express statutory provisions).
19
abetting liability under the ASA. We therefore affirm the
superior court’s summary judgment in favor of the Lewis and Roca
defendants on Count Two of Sell’s complaint.
__________________________________
A. John Pelander, Justice
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
Robert M. Brutinel, Justice
__________________________________
Peter J. Eckerstrom, Judge*
__________________________________
Garye L. Vásquez, Judge *
*
Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Peter J. Eckerstrom and the
Honorable Garye L. Vásquez, Judges of the Arizona Court of
Appeals, Division Two, were designated to sit in this matter.
20