Cardone Capital, LLC, et al. v. Luis Pino

It is a bedrock principle of the Securities Act that investors are responsible for bearing the risks of investments about which they are adequately warned. Accordingly, the bespeaks caution doctrine protects projections and other forward-looking statements from liability when cautionary warnings and risk disclosures render those projections immaterial. But courts have split over when such cautionary statements must be made and what they must say. Courts have also split over the proper interpretation of Section 12 of the Securities Act, which narrowly cabins a “seller” to a person who makes an “offer” to the person “purchasing such security from him.” 15 U.S.C. § 77l(a) (emphasis added). Two courts of appeals have required that an offer be actively made to and directed at a plaintiffpurchaser and that there be a relationship akin to traditional contractual privity. The Ninth and Eleventh Circuits, however, have not. The questions presented are:

1. Whether the bespeaks caution doctrine imposes a categorical requirement that cautionary language be made after or at the same time as the challenged misstatements, and what standards apply in determining whether cautionary language satisfies the bespeaks caution standard.

2. Whether a suit can proceed under Section 12 of the Securities Act where a plaintiff has not alleged that the defendant actively and directly solicited a plaintiff’s investment.