Securities litigation frequently raises the question of what conduct constitutes a primary violation of the federal securities laws, specifically, Rule 10b-5 and the various other antifraud provisions. Must one make a false statement in order to be primarily liable? The Supreme Court held in Janus Capital Group, Inc. v. First Derivative Traders that only those who “make any untrue statement of material fact” may violate Rule 10b5-(b). Other questions include whether one who merely disseminates a false statement, without actually writing or “making” the statement, can be primarily liable. And what are the contours of “scheme” liability under Rules 10b-5(a) and (c)? The Supreme Court recently clarified some of these difficult questions in Lorenzo v. SEC. 
Background: Janus and Primary Liability of “Makers” of Untrue Statements
As mentioned, the Supreme Court held in Janus that only those who “make any untrue statement of material fact” may violate Rule 10b5-(b). The Court wrote that the “maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it.” For example, the Court noted, a speechwriter does not control the content of the speech; that content is exclusively within the control of the person who delivers it. Under this analysis, the speechwriter is not a “maker” of the speech and therefore could not be held primarily liable under Rule 10b5-(b), even if all other elements of the violation were satisfied. Left undecided in Janus was whether one who disseminates a statement, with scienter but without control over its content, may be liable under any part of Rule 10b-5.