Antifraud Provisions

Antifraud Provisions

Securities Exchange Act of 1934 (Exchange Act)

The Exchange Act protects investors by making sure information is available, but also protects investors by prohibiting fraud and establishing severe penalties for those who defraud investors, as well as those who engage in some trading practices that take advantage of information most investors do not have.  When federal securities laws are violated by market participants, the SEC can bring a civil enforcement action and can also bring criminal actions for some violations.  The Exchange Act is also more generous than the Securities Act in providing investors with a right to bring a private suit against market participants who have defrauded them:

Brief Overview:

  • Section 10b and Rule 10b-5: These are the principal statutory weapons against fraud. Section 10b is the antifraud provision of the Exchange Act, while Rule 10b-5 is the rule the SEC promulgated under that section. Rule 10b-5 prohibits the use of any “device, scheme, or artifice to defraud,” and creates liability for any misstatement or omission of a material fact, or one that investors would think was important to their decision to buy or sell the stock.  Courts held early on that investors can sue, and the scope of liability is broad – potentially, a wide range of participants, from brokers to issuers to company employees may be liable, provided that the fraud was “in connection with” a securities purchase or sale. The Exchange Act antifraud provision has been used against all kinds of behavior, from misleading statements in company filings and documents used to sell the securities, to insider trading (where corporate insiders use information unavailable to investors to trade profitably) to market manipulation cases in which companies bought and sold their own stock so as to affect the market price of the company’s stock.  The breadth of Section 10(b) and Rule 10b-5, combined with the fact that individual investors have a cause of action, make 10b-5 suits very common.  Plaintiffs can recover the excess of what they paid over the actual price of the security.