U.S. Supreme Court justices on Monday appeared reluctant to further limit the scope of who can be held liable for violating laws that protect investors from securities fraud as they weighed an appeal by a New York investment banker who had been banned from the industry.
Only eight of the nine justices were present to hear arguments over a ruling by a Washington-based federal appeals court that found Francis Lorenzo liable for participating in a scheme to defraud investors when he sent misleading emails about a financially-troubled clean energy company.
Most of the justices seemed to agree with the Securities and Exchange Commission (SEC), which had enforced the securities laws against Lorenzo, while Chief Justice John Roberts and fellow conservative Justice Neil Gorsuch, seemed sympathetic to him.
The court has a 5-4 conservative majority. Justice Brett Kavanaugh, a conservative appointee of Republican President Donald Trump, did not participate in the case because he was part of the three-judge appeals court panel that previously reviewed the dispute. Kavanaugh joined the high court in October.
Kavanaugh dissented in the appeals court ruling that upheld most of the SEC's liability findings against Lorenzo, and would have sided with the banker.
The high court must rule in the case by the end of June.
The dispute centers on whether a person who did not personally make fraudulent statements but merely passed them along can be found liable for engaging in a fraudulent scheme. Anti-fraud provisions of U.S. securities laws prohibit false statements and other conduct categorized as acts, devices, practices or schemes.
On Monday, all four liberal justices and conservative Justice Samuel Alito appeared to approve of Lorenzo's liability in the deceptive scheme.
Lorenzo's attorney Robert Heim said that sending emails was not inherently deceptive, but liberal Justice Ruth Bader Ginsburg noted that the emails contained a "succession of untruths." Justice Stephen Breyer said, "Maybe he didn't make the statement, but he was sure a big deal participant."
Alito wondered why Lorenzo's actions would not "fall squarely" within the language of the SEC's rules.
In 2011 the Supreme Court narrowed the scope of who can be liable for false statements to those with ultimate authority over the statements.
Lorenzo, who served as the investment banking director at a broker-dealer called Charles Vista, sent the emails in 2009 seeking investors for a startup company's debt offering even though its energy-from-waste technology did not work.
The SEC in 2015 found that he made false statements and participated in a deceptive scheme by sending the emails. The commission fined him $15,000 and barred him from working in the industry for life.
Citing the 2011 Supreme Court precedent, the District of Columbia U.S. Circuit Court of Appeals last year threw out Lorenzo's liability over the false statements, saying they were made by his boss, but agreed with the fraudulent scheme charges because he knowingly produced and sent the false statements in the emails. It ordered the SEC to reconsider the penalties against Lorenzo.
Lorenzo said the SEC is trying to paint people who might be liable at most for aiding and abetting fraudulent schemes as the primary violators of securities laws.
On Monday, Gorsuch seemed to agree, noting that Lorenzo did not make the false statements in the emails he sent.
Lorenzo, who had the support of the powerful U.S. Chamber of Commerce business group, said that if the appeals court is not overturned it will lead to a swarm of abusive lawsuits, harming financial markets and the economy.
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