On November 20, 2023, WLF asked the Supreme Court to overturn the Second Circuit’s novel interpretation of federal securities law that splits with every other circuit that has decided the issue. Concluding that Item 303 of Regulation S-K creates a privately enforceable duty to disclose, the Second Circuit allowed a shareholder to sue a company for omitting 303 information from its financial statement—even though that omission did not render any portion of the filing misleading. WLF’s brief details how the Second Circuit’s reasoning is at odds with the plain meaning of SEC Rule 10b-5, the common law of fraud-by-omission, and longstanding Supreme Court precedent. WLF’s brief emphasizes that expanding the court-created private right of action under Rule 10b-5 to cover omitted Item 303 information would expand liability far beyond anything contemplated by Congress. WLF’s brief was prepared with generous pro bono support from Lyle Roberts, George Anhang, and William Marsh of Shearman & Sterling LLP.


WLF merits brief

WLF brief in support of certiorari