Supreme Court of the United States · Official docket →
FS Credit Opportunities Corp., et al. v. Saba Capital Master Fund, Ltd., et al.
Paid petition · United States Court of Appeals for the Second Circuit, No. 23-8104, 24-79, 24-80, 24-82, 24-83, 24-116, 24-189 · judgment June 26, 2024
Before the decision, about 1.9× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Second Circuit decision below, and a petition filed soon after the judgment below, and down for a business respondent.
Question presented
The courts of appeals have split 2-1 over whether Congress created an implied private right of action in Section 47(b) of the Investment Company Act (ICA), which provides:
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A contract that is made, or whose performance involves, a violation of this subchapter ... is unenforceable by either party ....
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To the extent that a contract described in paragraph (1) has been performed, a court may not deny rescission at the instance of any party unless such court finds that under the circumstances the denial of rescission would produce a more equitable result than its grant and would not be inconsistent with the purposes of this subchapter. 15 U.S.C. § 80a-46(b)(1)-(2). The Third and Ninth Circuits, relying on statutory text and structure, hold that Section 47(b) does not create an implied private right of action, and a panel of the Fourth Circuit has agreed in an unpublished opinion. Only the Second Circuit-where plaintiffs may be able to sue most investment funds subject to the ICA, given New York's and the New York Stock Exchange's roles in financial operations- holds the opposite based on an "inference": parties may bring a lawsuit under Section 47(b), even though Congress never said so. The question presented is whether Section 47(b) of the ICA, 15 U.S.C. § 80a-46 (b), creates an implied private right of action.
Counsel of record
For petitioner
Shay Dvoretzky
Skadden, Arps, Slate, Meagher & Flom LLP
For respondent
Paul D. Clement
Clement & Murphy, PLLC
Case
Conference history
Distributed for 3 conferences
Amicus briefs
3 cert-stage · 9 merits
(6 supporting pet./neither, 3 respondent)
Argument & decision
Argued December 10, 2025 — Shay Dvoretzky · Paul D. Clement. Audio and transcript
Decided June 11, 2026. Opinion by Barrett.
Proceedings
- Jul 13 2026Judgment Issued.
- Jun 11 2026Judgment REVERSED and case REMANDED. Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Kagan, J., filed a dissenting opinion. Jackson, J., filed a dissenting opinion, in which Sotomayor, J., joined, and in which Kagan, J., joined as to Parts I and II.
- Dec 10 2025Argued. For petitioners and BlackRock respondents in support of petitioners: Shay Dvoretzky, Washington, D. C.; and Max E. Schulman, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For Saba respondents: Paul D. Clement, Alexandria, Va.
- Nov 10 2025Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
- Nov 10 2025Reply Brief of petitioners, and the BlackRock respondents supporting petitioners, filed. (Distributed)
- Oct 24 2025Electronic record received from the United States Court of Appeals for the Second Circuit and available with the Clerk.
- Oct 24 2025Record received from the United States District Court for the Southern District of New York. The record is electronic and is available on PACER.
- Oct 22 2025Record requested from the United States Court of Appeals for the Second Circuit.
- Oct 22 2025CIRCULATED
- Oct 17 2025SET FOR ARGUMENT on Wednesday, December 10, 2025.
- Oct 16 2025Amicus brief of Securities-Law Scholars and Former Senior SEC Officials not accepted for filing. (October 16, 2025)
- Oct 16 2025Brief amicus curiae of Marlton Partners, L.P. filed.
- Oct 16 2025Brief amicus curiae of ATG Capital Management, LLC filed.
- Oct 16 2025Brief amici curiae of Securities-Law Scholars, et al. filed.
- Oct 09 2025Brief of respondents Saba Capital Master Fund, Ltd., et al. filed.
- Sep 30 2025Motion to dispense with printing the joint appendix filed by petitioners GRANTED.
- Sep 30 2025Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
- Sep 03 2025Brief amicus curiae of United States filed.
- Sep 03 2025Brief amicus curiae of Mutual Fund Directors Forum filed.
- Sep 03 2025Brief amicus curiae of Chamber of Commerce of the United States of America filed.
- Sep 03 2025Brief amici curiae of Investment Company Institute, et al. filed.
- Sep 02 2025Amicus brief of Freedom and Justice Foundation in support of neither party not accepted for filing. (To be corrected - September 05, 2025)
- Sep 02 2025Brief amicus curiae of Freedom and Justice Foundation in support of neither party filed (Corrected - September 10, 2025).
- Aug 29 2025Brief amicus curiae of Separation of Powers Clinic filed.
- Aug 27 2025Brief of petitioners, and the BlackRock respondents supporting petitioners, filed.
- Aug 21 2025Motion to dispense with printing the joint appendix filed by petitioner FS Credit Opportunities Corp.
- Jul 16 2025Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including August 27, 2025. The time to file respondents' brief on the merits is extended to and including October 9, 2025.
- Jul 03 2025Motion for an extension of time to file the briefs on the merits filed.
- Jun 30 2025Petition GRANTED.
- Jun 11 2025Supplemental brief of petitioners FS Credit Opportunities Corp., et al. filed. (Distributed)
- Jun 10 2025DISTRIBUTED for Conference of 6/26/2025.
- Jun 09 2025Supplemental brief of respondents Saba Capital Master Fund, Ltd., et al. filed. (Distributed)
- May 22 2025Brief amicus curiae of United States filed.
- Jan 13 2025The Solicitor General is invited to file a brief in this case expressing the views of the United States.
- Dec 24 2024DISTRIBUTED for Conference of 1/10/2025.
- Dec 23 2024Reply of petitioners FS Credit Opportunities Corp., et al. filed. (Distributed)
- Dec 19 2024Waiver of the 14-day waiting period for the distribution of the petition pursuant to Rule 15.5 filed by petitioners.
- Dec 17 2024Brief of respondents Saba Capital Master Fund, Ltd., et al. in opposition filed.
- Nov 18 2024Motion to extend the time to file a response is granted in part and the time is extended to and including December 17, 2024.
- Nov 13 2024Motion to extend the time to file a response from December 9, 2024 to January 8, 2025, submitted to The Clerk.
- Nov 08 2024Response Requested. (Due December 9, 2024)
- Nov 06 2024DISTRIBUTED for Conference of 11/22/2024.
- Oct 28 2024Brief amicus curiae of The Chamber of Commerce of the United States of America filed.
- Oct 28 2024Brief amici curiae of Investment Company Institute, et al. filed.
- Oct 11 2024Letter from counsel for BlackRock ESG Capital Allocation Term Trust and BlackRock Municipal Income Fund submitted pursuant to Rule 12.6 filed.
- Sep 24 2024Petition for a writ of certiorari filed. (Response due October 28, 2024)