미국 증권규제상 시장사기이론의 최근 판례 동향 - aiding and abetting liability와 관련하여 -

Abstract

This paper describes that the fraud-on-the-market theory, adopted by the Supreme Court in Basic Inc. v. Levinson. In Basic, the Supreme Court gave securities-fraud plaintiffs a tool that greatly reduced the challenge of proving their claims. In Apollo Group, the plaintiffs relied on the fraud-on-the market theory to establish reliance, but the stock price did not decline until two weeks after the initial corrective disclosure was made. Thus, the issue presented was, when a plaintiff utilizes the fraud-on-the-market theory, which is predicated on an efficient market, how long after the corrective disclosure may the stock price decline for the loss causation element of a Rule 10b-5 claim to be satisfied? The five circuits that have addressed the timing of the loss are divided. The Second and Third Circuits have held that a securities-fraud plaintiff must demonstrate that the market immediately reacted to the corrective disclosure. Conversely, the Fifth, Sixth, and Ninth Circuits have held that the price decline may occur weeks or even months after the initial corrective disclosure. By denying certiorari in Apollo Group, the Supreme Court left this split unresolved. On the other hand, the Fifth Circuit, relying on its earlier decision in Oscar Private Equity Inv. v. Allegiance Telecom, Inc., 487 F.3d 261 (5th Cir. 2007), added a fourth requirement: that plaintiffs also establish loss causation to trigger the fraud-on-the-market presumption. But in Erica P. John Fund, the Supreme Court rejected this additional requirement, holding that it impermissibly conflates "transaction causation" which is relevant to investor reliance, and "loss causation", which is not relevant to investor reliance.