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The Muddled Duty To Disclose Under Rule 10b-5, Donald C. Langevoort, G. Mitu Gulati
The Muddled Duty To Disclose Under Rule 10b-5, Donald C. Langevoort, G. Mitu Gulati
Vanderbilt Law Review
Because the federal securities laws are, at heart, about disclosure, the question of whether and when there is a duty to disclose is often the central question in any given case. Certainly, the Securities & Exchange Commission (SEC) has broad powers to compel disclosures by issuers and certain others and has crafted a mandatory disclosure regime that creates many explicit duties. For a variety of reasons, however, this explicit regime falls short of a comprehensive answer to the duty question. For some sixty years now, the hardest duty questions have been addressed under the rubric of fraud, mainly under Rule …
The Measure Of Recovery Under Rule 10b-5: A Restitution Alternative To Tort Damages, Robert B. Thompson
The Measure Of Recovery Under Rule 10b-5: A Restitution Alternative To Tort Damages, Robert B. Thompson
Vanderbilt Law Review
The thesis of the Article is that much of the confusion about rule 10b-5 remedies turns on the courts' failure to recognize adequately that the rule derives from two separate and independent sources at common law. Rule 10b-5 draws primarily on tort concepts that focus on harm to the plaintiff and limit recovery by principles of legal causation. In addition, the rule, like common-law fraud, traces its lineage to principles based on unjust enrichment. This second source focuses on the defendant's gain and requires the defendant to return all benefit received through the fraudulent transaction, even if that gain exceeds …