Recent federal court decisions have struggled to apply the Supreme Court's decision in Central Bank v. First Interstate to determine when outside professionals should be held liable as primary violators under section IO(b) of the Securities Exchange Act. In keeping with the Court's current interpretive methodology, Central Bank and its progeny employ a textualist approach. In this Article, Professor Fisch argues that literal textualism is an inappropriate approach for interpreting the federal securities laws generally and misguided in light of legislative developments post-dating the Central Bank decision. Instead, Professor Fisch advocates an approach that weighs Congress 's recent endorsement of liability for outside professionals against the potential for litigation abuses perceived by the Central Bank Court. The Article concludes that recent federal decisions have been unduly restrictive in their interpretation of section 1 O(b) liability, and suggests that courts give greater consideration to the nature of the professional-client relationship and the role of liability in furthering the integrity of the securities markets.
Fisch, Jill E., "The Scope of Private Securities Litigation: In Search of Liability Standards for Secondary Defendants" (1999). Faculty Scholarship at Penn Law. 1218.
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