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Francis V. Lorenzo v. Securities and Exchange Commission

Paid petition · United States Court of Appeals for the District of Columbia Circuit, No. 15-1202 · judgment September 29, 2017

Decided · March 27, 2019
Pre-decision estimate: 8% cert probability (95% interval 5%–12%)

Before the decision, about 1.9× the 4.1% base rate. The model weighted this up for a D.C. Circuit decision below, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition).

Question presented

The antifraud provisions of the federal securities laws prohibit two well-defined categories of misconduct. One category is the use of fraudulent statements in connection with the offer and sale of securities. The other category is employing fraudulent schemes in connection with the offer and sale of securities. In Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011), this Court considered the elements of a fraudulent statement claim and held that only the "maker" of a fraudulent statement may be held liable for that misstatement under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 (b). The question presented is whether a misstatement claim that does not meet the elements set forth in Janus can be repackaged and pursued as a fraudulent scheme claim. The Circuits have split 3-2 on this question. The Second, Eighth and Ninth Circuits have held that a misstatement alone cannot be the basis of a fraudulent scheme claim, while the DC Circuit and the Eleventh Circuit have held that a misstatement standing alone can be the basis of a fraudulent scheme claim. JUSTICE KAVANAUGH IS RECUSED IN THIS CASE.

Counsel of record

For petitioner
Robert G. Heim
Tarter Krinsky & Drogin LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 2 conferences

Amicus briefs
3 merits
(2 supporting pet./neither, 1 respondent)

Argument & decision

Argued December 3, 2018 — Robert Heim · Christopher G. Michel. Audio and transcript

Decided March 27, 2019. Opinion by Breyer.

Proceedings

  1. Mar 27 2019
    Adjudged to be AFFIRMED. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Gorsuch, J., joined. Kavanaugh, J., took no part in the consideration or decision of the case.
  2. Dec 03 2018
    Argued. For petitioner: Robert Heim, New York, N. Y.; For respondent: Christopher G. Michel, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (pro hac vice.)
  3. Nov 01 2018
    Reply of petitioner Francis V. Lorenzo filed. (Distributed)
  4. Oct 26 2018
    Motion to argue pro hac vice filed by respondent GRANTED. Justice Kavanaugh took no part in the consideration or decision of this motion.
  5. Oct 19 2018
    CIRCULATED
  6. Oct 19 2018
    Justice Kavanaugh is recused in this case.
  7. Oct 15 2018
    Record received from the U.S.C.A. District of Columbia Circuit.
  8. Oct 12 2018
    Brief amicus curiae of The North American Securities Administrators Association, Inc. filed.
  9. Oct 09 2018
    SET FOR ARGUMENT on Monday, December 3, 2018
  10. Oct 05 2018
    Brief of respondent Securities and Exchange Commission filed.
  11. Oct 05 2018
    Motion to argue pro hac vice filed by respondent Securities and Exchange Commission.
  12. Aug 27 2018
    Brief amici curiae of Securities Industry and Financial Markets Association and Chamber of Commerce of the United States of America filed.
  13. Aug 27 2018
    Amicus brief of Securities Law Professors not accepted for filing. (Duplicate submission - September 10, 2018)
  14. Aug 27 2018
    Brief amici curiae of Securities Law Professors filed.
  15. Aug 20 2018
    Joint appendix filed. (Statement of costs filed.)
  16. Aug 20 2018
    Brief of petitioner Francis V. Lorenzo filed.
  17. Jul 31 2018
    Motion for an extension of time to file the opening briefs on the merits filed.
  18. Jul 31 2018
    Motion to extend the time to file the opening briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 20, 2018. The time to file respondent's brief on the merits is extended to and including October 5, 2018.
  19. Jun 18 2018
    Petition GRANTED.
  20. Jun 11 2018
    DISTRIBUTED for Conference of 6/14/2018.
  21. May 23 2018
    Reply of petitioner Francis V. Lorenzo filed. (Distributed)
  22. May 22 2018
    DISTRIBUTED for Conference of 6/7/2018.
  23. May 02 2018
    Brief of respondent Securities and Exchange Commission in opposition filed.
  24. Mar 28 2018
    Motion to extend the time to file a response is granted and the time is further extended to and including May 2, 2018.
  25. Mar 26 2018
    Motion to extend the time to file a response from April 2, 2018 to May 2, 2018, submitted to The Clerk.
  26. Feb 27 2018
    Motion to extend the time to file a response is granted and the time is extended to and including April 2, 2018.
  27. Feb 23 2018
    Motion to extend the time to file a response from March 2, 2018 to April 2, 2018, submitted to The Clerk.
  28. Jan 26 2018
    Petition for a writ of certiorari filed. (Response due March 2, 2018)
  29. Dec 19 2017
    Application (17A657) granted by The Chief Justice extending the time to file until January 26, 2018.
  30. Dec 15 2017
    Application (17A657) to extend the time to file a petition for a writ of certiorari from December 28, 2017 to January 26, 2018, submitted to The Chief Justice.
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