There is an interesting article on the ABA’s Business Law eSource (July 2003) entitled “Securities Litigation Against Third Parties: Pre-Central Bank Aiders And Abettors Become Targeted Primary Defendants.” The authors, Jay Eisenhofer and Cynthia Calder, offer a comprehensive summary of the post-Central Bank case law on who is a “primary violator” for purposes of Rule 10b-5, including separate sections on cases involving accountants, lawyers, underwriters/investment banks, and ratings agencies.
As noted previously in The 10b-5 Daily, the line between a “primary violator” (liable) and an “aider and abettor” (not liable) is becoming blurred. Eisenhofer and Calder conclude that “accountants, lawyers, and investment bankers ought to be taking a hard look at their relationships with their clients, and their own potential for primary liability under Rule 10b-5 in cases of corporate fraud.”
Quote of note: “Although neither has achieved majority acceptance, two different approaches – the ‘bright line’ and ‘substantial participations standards – have emerged from the lower courts. According to those courts that have adopted the ‘bright line’ standard, only if a defendant actually makes a statement to the plaintiff (or the investing public) which contains a misrepresentation or omission can that defendants be liable. By contrast, under the ‘substantial participation’ rubric, a defendant that plays a significant role in creating the statement can be held liable.”