A call for the SEC to adopt more safe harbors that limit the reach of rule 10b-5

Allan Horwich*

*Corresponding author for this work

Research output: Contribution to journalArticle

Abstract

The SEC has often adopted regulations that describe conduct that is deemed not to violate the law or that effectively exclude specified conduct from the scope of particular provisions of the securities laws, such as the prohibition on deception imposed by SEC Rule 10b-5. This article examines the nature of and rationales for the provisions that have narrowed the reach of that rule, and proposes that this approach be applied more broadly, further reducing the exposure of issuers of securities and other persons to claims under Rule 10b-5 without impairing the SEC’s enforcement of the securities laws. This will reduce uncertainty regarding the scope of Rule 10b-5, including in the arena of private damage claims, directing the focus to misrepresentations and half-truths. Several specific proposals are made here. The intention is to focus attention on the utility of the safe harbor approach in today’s litigation landscape and generate discussion that might lead to broader application of this concept.

Original languageEnglish (US)
Pages (from-to)53-89
Number of pages37
JournalBusiness Lawyer
Volume74
Issue number1
StatePublished - Jan 1 2018

ASJC Scopus subject areas

  • Organizational Behavior and Human Resource Management
  • Law

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