郭子澄 Jason Kuo, 陈妍玏 Cynthia Tan
2019 saw a spike in enforcement actions by the U.S. Securities and Exchange Commission (the “SEC”) alongside near-record highs of U.S. federal securities fraud class action filings. Ensuring accurate and timely disclosure becomes ever more important. This client alert generally discusses liabilities under the U.S. federal securities laws.
外国私人发行人(foreign private issuers，即美国以外的非政府发行人)在美国发行或上市时会通过多种方式承担美国联邦证券法下的责任。这种责任既可以是民事责任，也可以是刑事责任。尽管私人证券诉讼更为常见，SEC也可以提起民事诉讼、行政审裁和调查（如果涉及刑事案件，则由美国司法部提起）。
A foreign private issuer becomes exposed to liability under the U.S. federal securities laws in a variety of ways when it offers or lists its securities in the United States. This liability can be civil or, in certain circumstances, criminal. Although litigation by private plaintiffs is more common, the SEC (and, in the case of criminal matters, the U.S. Department of Justice) can initiate lawsuits, administrative proceedings and investigations.
业界一般认为1933年《美国证券法》（经修订）（以下简称“《证券法》”）第11或第 12(a)(2)条不适用于依据《证券法》S 规例（Regulation S）或144A 规则（Rule 144A）进行的证券发行，故该二类发行无须确立正式的“尽职抗辩”（“due diligence” defense，即因曾进行尽职调查而得免于法律责任）；然而，在某些情况下，证券发行人和承销商仍会依据《证券法》第 12(a)(1)条承担解约责任，及受到1934年《美国证券交易法》（以下简称“《证券交易法》”）第 10(b)条和10b-5规则（Rule 10b-5）关于重大不实陈述或遗漏的规定所赋予的私人诉权的规制。
While it is generally believed that Rule 144A and Regulation S offerings are not subject to the liability provisions of Section 11 or Section 12(a)(2) of the U.S. Securities Act of 1933 (the “Securities Act”), thereby limiting the potential need to establish a formal “due diligence” defense, the issuer and the underwriters could, under some circumstances, be subject to liability for rescission under Section 12(a)(1), as well as be subject to private rights of action under Section 10(b) of the U.S. Exchange Act of 1934 (the “Exchange Act”) and Rule 10b‐5 for material misstatements or omissions.
A. SECTION 11 OF THE SECURITIES ACT
《证券法》第 11条和第 12条是《证券法》中最基本的民事责任条款。基于《证券法》的宗旨，它们只保护证券买受方，不保护证券的出售方。
Sections 11 and 12 are the basic private liability provisions of the Securities Act. In keeping with the general scheme of the Securities Act, they protect only buyers, not sellers, of the securities.
Section 11(a) makes specific persons liable for any untrue statement of material fact in a registration statement or any omission of any material fact required to be stated in a registration statement or necessary to make statements therein not misleading, to any person acquiring the relevant security unless the acquiror knew of such untruth or omission at the time of the purchase.
适用范围。就《证券法》第 11条而言，“注册文件”（registration statement）包括发行说明书和《证券法》第 7条及据此颁布的规定所要求的其他信息。《证券法》第 11条不适用于口头交流或发行说明书初稿。此外，在二级市场做出的陈述，包括“路演”（roadshow）演示、分析报告和电话会议中对机构投资者的做出的陈述，通常也不在《证券法》第 11条的适用范围之内。
Scope. For purposes of section 11, a “registration statement” includes the prospectus and other information required by Section 7 of the Securities Act and the regulations promulgated thereunder. Section 11 does not apply to oral communications or preliminary prospectuses. Aftermarket statements, which include “roadshow” presentations, analyst reports, and statements to institutional investors during conference calls, also generally are outside the reach of section 11.
Materiality. Plaintiff must allege and prove that the alleged misstatement was of a material fact. A fact is material if there is a substantial likelihood that a reasonable investor would attach importance to it in determining whether to purchase the security. Materiality is a mixed question of fact and law. The touchstone of the inquiry is whether the defendants’representations or omissions, considered together in context, would affect the total mix of information available to the public and thereby mislead a reasonable investor.
Plaintiff’s Standing. Section 11 claims are available to any person who purchased or otherwise acquired securities registered pursuant to a registration statement containing a material misstatement or omission, whether he bought the securities directly from the issuer or underwriter or in the aftermarket.
1. 责任主体 Persons Liable
原告可以依据《证券法》第 11条向发行人及其董事、经其同意在注册文件中披露即将担任证券发行人董事职务的人士、每一位注册文件的签署人、每一位经其同意因曾核准或编制注册文件中任何部分而被列名的专家（例如：会计师、工程师、评估师等）及每位与该证券相关的承销商，提起索赔之诉。就《证券法》第 11条而言，律师通常不同意在注册文件中被列名为专家。
A Section 11 claim can be brought against the issuer and its directors, the persons named, by their consent, in the registration statement as about to become directors of the issuer, every person who signs the registration statement, every expert (e.g. accountant, engineer, appraiser, etc.) who is named by consent as having certified or prepared any part of the registration statement, and every underwriter of the relevant security. Lawyers typically do not consent to be named as experts in the registration statements for the purposes of Section 11.
All the above, except experts, are responsible for all misstatements and omissions in the registration statement. Experts are responsible for misstatements and omissions only in those parts of the registration statement they are named as having prepared or certified. In particular, lawyers customarily make it clear in their legal opinions that their scope of work and opinions rendered in connection with such work do not extend to any financial statements and financial information included in the registration statements.
2. 故意与信赖 Scienter and Reliance
A plaintiff, in almost all cases, need not show that he relied on statements in a registration statement to recover under Section 11. A Section 11 plaintiff does not need to establish a defendant’s scienter (i.e., a specific state of mind), or even negligence, to provide his case. It is enough if the registration statement is shown to have contained material misstatements or omissions.
The absence of any requirement to show scienter or, in most circumstances, reliance, makes Section 11 claims far easier to sustain.
3. 抗辩事由 Defenses
Issuer. An issuer has virtually no defenses under Section 11: it is strictly liable for material misstatements and omissions in registration statements.
其他被告。依据《证券法》第 11(b)条，所有其他被告都具有多种抗辩事由并且承担所有相应的举证责任。其中，最重要的抗辩事由是《证券法》第 11(b)(3)条中的尽职抗辩，即被告具有合理的基础相信该不实陈述或遗漏存在真实性。
Other defendants. All other defendants have a variety of defenses under Section 11(b), for all of which they bear the burden of proof. The most important defense is set out in Section 11(b)(3): reasonable grounds for belief in the truth of the alleged misstatements or omissions – the so-called “due diligence” defense.
Section 11(c) provides that the standard for determining reasonable investigation and reasonable grounds for belief is “the standard of reasonableness . . . required of a prudent man in the management of his own property.”
Plaintiff’s Knowledge. Section 11 does not permit recovery for any person who knew of the alleged misstatement or omission at the time he acquired the securities.
No Loss Causation. A defendant may limit or eliminate Section 11 damages by proving that plaintiff’s losses were caused by factors other than the alleged misstatement or omission.
Due Diligence Defense. Section 11(b)(3) gives different defenses to experts and non-experts with regard to misstatements or omissions in the registration statement. In general, management and inside directors of the issuer will be under the highest duty (approaching absolute liability) to investigate the truth of the registration statement. Underwriters are also placed under a high duty to investigate. They cannot accept an issuer’s representation of facts about itself at face value, but must make an independent attempt at verification.
4. 救济和损害 Remedies and Damages
Under Section 11(e), the measure of a plaintiff’s damages is the decline in the value of his securities. Punitive damages are not recoverable under the Securities Act or the Exchange Act.
除承销商以外的被告在《证券法》第 11条项下的赔偿金额的上限为发行证券的总价值。《证券法》第 11条同时规定被告可以通过证明原告的损失是由不实陈述或遗漏以外的因素造成的，来减少甚至是消除原告依据第 11条主张的赔偿额。
There is no upper limit, other than the total value of the offering in question, to the liability under Section 11 of defendants other than underwriters. A defendant may limit or eliminate Section 11 damages by proving that plaintiff’s losses were caused by factors other than the alleged misstatement or omission.
B. SECTION 12 OF THE SECURITIES ACT
依据《证券法》第 12条，如果出售者在出售证券时使用不实或具有误导性发行说明书或口头陈述，买受者可以请求解约；如买受者不再持有证券，则由出售者对买受者所遭受的损失承担相应的损害赔偿责任。《证券法》第 11条针对证券的“制造商”和“批发商”（即发行人、承销商和协助他们编制注册文件的专家）；与之相反，第 12条针对的是证券的“零售商”（即向社会公开发售的证券交易商）。
Section 12 allows a purchaser to rescind his purchase of securities, or to get damages from his seller if he no longer holds the securities, if the seller used a false or misleading prospectus or false or misleading oral statements in making the sale. Contrasted with Section 11 which deals with the “manufacturers” and “wholesalers”of securities (i.e. issuers, underwriters and experts who aid them in preparing registration statements), Section 12 deals with “retailers”of securities (i.e. the securities dealers who sell to the general public).
依据《证券法》第 12(a)(1)条，如投资者购买了在违反《证券法》第 5条（第 5条对注册要求进行规定）的交易中发行的证券，投资者可以请求解约并获得其买受证券时支付的对价（及其利息，扣除投资者在证券交易中获得的任何金额）。
Under Section 12(a)(1) of the Securities Act, an investor who buys securities issued in transactions violating Section 5 (which imposes registration requirements) can rescind the sale and recover his purchase price (plus interest, less any amount received on the securities).
依据《证券法》第 12(a)(2)条，任何发行或出售证券的人士均需要对发行说明书或任何口头交流中任何“对重大事实的不实陈述，或在做出陈述的情境下，使陈述不至误导所必须披露的重大事实的遗漏”承担责任。《证券法》第 12(a)(2)条与《证券法》第 11条的范围虽然有重合之处，但第 12(a)(2)条涵盖了口头陈述以及发行说明书中的陈述，而不仅是注册文件（发行说明书是注册文件的一部分）。此外，被告会对除《证券法》第 5条所要求的发行说明书以外的任何发行文件承担责任。
Section 12(a)(2) of the Securities Act imposes liability on any person who offers or sells a security by means of a prospectus, or any oral communication, which contains “an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.”
Scope. Section 12(a)(2) does not limit misrepresentations to the final registration statement but includes other documents and oral misrepresentations in connection with public offerings such as road shows.
Plaintiff’s Standing. The class of eligible plaintiffs is narrower for claims under Section 12(a)(2), which requires a plaintiff to have purchased the subject security in the offering itself and not in the aftermarket.
1. 责任主体 Persons Liable
《证券法》第 12(a)(2)条下的责任主体仅限于“募集或出售”证券的人。因此，不同于《证券法》第 11条，《证券法》第 12条具有“存在直接交易关系”（privity）的要求。
Section 12(a)(2) limits liability to a person who “offers or sells” a security. Thus, unlike Section 11, Section 12 has a “privity”requirement.
Pinter v Dahl一案及随后的案件对《证券法》第 12条下的“出售者”（seller）一词进行了宽泛的定义：任何非证券所有者，如果在某种程度上基于自身或证券所有者的经济利益考量，诱使（solicit）证券投资者购买证券，都有可能成为本节项下的出售者。由于《证券法》第 12条的司法定义将出售者的范围扩展到证券的直接出售者（或募集者）以外的人士，原告可以依据《证券法》第12条起诉参与公开发售过程的专业人士（例如律师）。
As a result of Pinter v Dahl and subsequent cases, a non-owner of securities may be held to be a “seller” if it solicits the purchasers, motivated at least in part by a desire to serve his own financial interests or those of the securities owner. The judicial expansion of Section 12 “seller” status to persons other than the direct seller (or offeror) of a security has allowed for Section 12 claims against professionals involved in the public offering process, such as lawyers.
2. 故意与信赖 Scienter and Reliance
与依据《证券法》第 11条提起索赔之诉一样，原告依据《证券法》第 12(a)(2)条起诉时不需要证明存在故意、信赖或过失。
As with claims under Section 11, a plaintiff asserting a claim under Section 12(a)(2) is not required to establish scienter, reliance or negligence.
Generally, a plaintiff who shows that his seller made materially false or misleading statements or used a materially false or misleading prospectus, and that plaintiff had no knowledge of any untruth or omission, has established his case.
3. 抗辩事由 Defenses
Knowledge. The plaintiff knew the truth of the misrepresented or omitted material fact.
合理注意义务（Reasonable Care）/尽职辩护。与《证券法》第 11条相同，《证券法》第 12(a)(2)条提供了明确的尽职辩护，即如果被告可以证明“被告不知悉且在已尽合理注意义务后仍不可能知悉存在不实陈述或遗漏”，则可以避免对涉嫌误导的陈述承担责任。
Reasonable Care/Due Diligence Defense. In common with Section 11, Section 12(a)(2) provides an express “due diligence” defense which permits a defendant to avoid liability for an allegedly misleading statement if he can establish “he did not know, and in the exercise of reasonable care, could not have known of the untruth or omission.”
缺失损失因果关系。1995年《私人证券诉讼改革法案》增加了第 12(b)条——为《证券法》第 12(a)(2)条增加了类似于《证券法》第 11条中已有的损失因果关系抗辩，从而使得被告能够从“损失因果关系”角度提出抗辩。这项修改可以防止原告基于应归因于市场事件导致的损失，而非不实陈述或遗漏的所导致的损失，而获得额外收益。
No Loss Causation. The Private Securities Litigation Reform Act of 1995 (the “Reform Act”) added Section 12(b), providing the defendant in a Section 12(a)(2) action with a “loss causation” defense similar to the defense that already had been available under Section 11. This amendment to the statute allows courts to prevent windfall recoveries by plaintiffs whose losses were attributable to market events rather than the alleged misstatement or omission.
4. 救济和损害 Remedies and Damages
The primary remedy provided by Section 12 is rescission: plaintiff tenders his securities to the defendant and receives his purchase price, with interest, in return. Where the plaintiff has, before the filing of suit, disposed of the relevant securities, and thus cannot rescind the sale, he may recover damages.
C.《证券交易法》第 10(b)条和 10b-5规则
C. SECTION 10(B) AND RULE 10B-5 OF THE EXCHANGE ACT
Section 10(b) of the Exchange Act prohibits fraud in the purchase or sale of securities, and SEC Rule 10b-5, its implementing regulation, contains the catch-all anti-fraud provision of the federal securities laws.
10b-5规则禁止任何人利用州际贸易：（1）运用任何手段、计划或策略进行欺诈；（2）做出重大不实陈述或遗漏；或（3）从事任何与买受或出售证券或与证券的互换协议（securities-based swap agreement）相关的欺诈行为或商业活动。
Rule 10b-5 prohibits use of any means of interstate commerce to (1) employ any device, scheme or artifice to defraud, (2) make material misstatements or omissions, or (3) engage in any course of business that operates as a fraud against any person, in connection with the purchase or sale of any security or securities-based swap agreement.
适用范围。《证券交易法》第 10(b)条和 10b-5规则适用于与买卖证券有关的任何口头或书面通讯、操纵或欺骗性行为，并且不局限于公开发售的证券。
Scope. Section 10(b) and Rule 10b-5 apply to any oral or written communication, or manipulative or deceptive practice, in connection with the purchase or sale of a security, and is not limited to public offerings of securities.
私人诉权。尽管《证券交易法》第 10(b)条和 10b-5规则没有提供明示的私人诉权，但联邦法院根据普通法的原则逐步创设了“隐含的私人诉权”（implied private right of action）。SEC和美国司法部均可以执行 10b-5规则：SEC可以通过禁制令及依据《证券交易法》第 21(d)条施以民事罚款执行 10b-5规则；美国司法部可以依据《证券交易法》第 32(a)条提起诉讼执行10b-5规则，对故意违反《证券交易法》的行为施以刑事责任。
Private Right of Action. Although Section 10(b) and Rule 10b-5 do not provide an express private right of action, federal courts have developed over time an implied private right of action based on common law principles. Rule 10b-5 can be enforced by the SEC in injunctive and civil penalty actions, brought pursuant to Section 21(d) of the Exchange Act, and by the Justice Department in actions pursuant to Section 32(a) of the Exchange Act, which imposes criminal liability for willful violations of the Exchange Act.
Plaintiff’s Standing. The Supreme Court has squarely held that the plaintiff in a private action for damages under the rule must have been a purchaser or seller of securities in the transaction complained of. Thus, for example, offerees of an unconsummated offer to purchase would not qualify.
Insider Trading. Generally speaking, Rule 10b-5 prohibits a person from buying or selling securities on the basis of material non-public information in violation of a duty owed to the shareholders of the issuer or where the information has been otherwise misappropriated.
In contrast to the plaintiff, the defendant need not have purchased or sold securities. It is enough if his conduct occurred “in connection with” purchases or sales of securities. The “in connection with” requirement is satisfied if the defendant purchased or sold fraudulently.
Lorenzo v. SEC – “传播”欺诈性陈述的人也需承担责任
Lorenzo v. SEC – person who does not “make”, but only disseminates, a fraudulent statement held liable
在或许是2019年最重要的证券案件判决——Lorenzo v. SEC一案的判决中，美国最高法院指出：即使一个人未“做出”欺诈性陈述，其仍然可能需要承担《证券交易法》第 10(b)条和 10b-5规则项下的主要责任。在Lorenzo案中，审查的重点从个人是否需要对做出具有欺诈性的虚假陈述负责，转变为审查个人的“欺诈的意图”（intent to defraud）和参与旨在欺诈的“计划”或“交易过程”的积极性。
In perhaps the most significant securities decision of 2019, the Supreme Court, in Lorenzo v. SEC, held that a person who does not “make”a fraudulent statement may nonetheless be held primarily liable under Section 10(b) of the Exchange Act and Rule 10b-5 for disseminating it. Under Lorenzo, the focus of the inquiry becomes an individual’s “intent to defraud” and active participation in a “scheme” or “course of business” designed to defraud, rather than on whether the individual was responsible for making a fraudulent misstatement.
Plaintiff must allege that defendant acted with scienter, that is, either intent to deceive, manipulate or defraud, or recklessness (beyond mere negligence) when engaged in conduct proscribed by Rule 10b-5.
The plaintiff must show that the prohibited conduct of defendants was a substantial factor in causing the transaction complained of. Courts refer to this requirement as “transaction causation” or “reliance”.
Transaction Causation. Under the “fraud on the market”doctrine, securities fraud plaintiffs can satisfy the reliance requirement by claiming that they relied on the integrity of the market price which allegedly reflected the false or misleading information rather than relying directly on the allegedly false or misleading statements at issue. The presumption of reliance can be rebutted by showing, inter alia, that a plaintiff’s decision to purchase or sell shares was not influenced by the alleged misstatements or that the misrepresentations did not, in fact, distort the price of the stock.
损失因果关系。除交易因果关系外，原告还必须提供证明“损失因果关系”证据。损失因果关系通常被称为“最近因果关系”（proximate causation）或“法律因果关系”（legal causation）。判断是否存在损失因果关系涉及能否“确定投资者遭受的损失‘源于’（flowed）不实陈述。”
Loss Causation. In addition to transaction causation, a plaintiff must provide evidence of “loss causation”, often referred to as “proximate causation” or “legal causation.” It involves a “determination that the harm suffered by the investor ‘flowed’from the misstatement.”
《证券交易法》第 10(b)条和 10b-5规则均未明确包含尽职抗辩。然而，如果被告能够依据《证券法》第 11条或12(a)(2)条满足尽职抗辩的构成要件，则可能会避免构成 10b-5规则项下故意的要件。
Neither Section 10(b) nor Rule 10b-5 contains an express due diligence defense. However, a defendant’s ability to satisfy the due diligence defense under Sections 11 or 12(a)(2) of the Securities Act might preclude a finding of scienter under Rule 10b-5.
Remedies available in private actions under Rule 10b-5 include injunctive relief as well as damages. The Supreme Court has stated that the correct measure of damages under Rule 10b-5 for a defrauded seller or purchaser is the “out-of-pocket” measure, that is, the difference between the price paid or received and the true value at the time of purchase.
This is measured as the difference between the price at which the securities were bought (not to exceed the price at which the securities were offered to the public) and the price at which the securities were sold, if the securities were sold before suit was filed, or the price as of the date the suit was filed, if the securities were still held as of that date.
 Pinter v Dahl 486 U.S. 622 (1988).
 Lorenzo v. Sec. & Exch. Comm’n, No. 17–1077, slip op. (S. Ct. Mar. 27, 2019)