15 U.S.C. § 77k — Civil liabilities on account of false registra-

Page 149 TITLE 15—COMMERCE AND TRADE § 77k § 77k. Civil liabilities on account of false registra- tion statement (a) Persons possessing cause of action; persons liable In case any part of the registration statement, when such part became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring such security (unless it is proved that at the time of such acquisition he knew of such un- truth or omission) may, either at law or in eq- uity, in any court of competent jurisdiction, sue— (1) every person who signed the registration statement; (2) every person who was a director of (or person performing similar functions) or part- ner in the issuer at the time of the filing of the part of the registration statement with re- spect to which his liability is asserted; (3) every person who, with his consent, is named in the registration statement as being or about to become a director, person per- forming similar functions, or partner; (4) every accountant, engineer, or appraiser, or any person whose profession gives authority to a statement made by him, who has with his consent been named as having prepared or cer- tified any part of the registration statement, or as having prepared or certified any report or valuation which is used in connection with the registration statement, with respect to the statement in such registration statement, re- port, or valuation, which purports to have been prepared or certified by him; (5) every underwriter with respect to such security. If such person acquired the security after the issuer has made generally available to its secu- rity holders an earning statement covering a pe- riod of at least twelve months beginning after the effective date of the registration statement, then the right of recovery under this subsection shall be conditioned on proof that such person acquired the security relying upon such untrue statement in the registration statement or rely- ing upon the registration statement and not knowing of such omission, but such reliance may be established without proof of the reading of the registration statement by such person. (b) Persons exempt from liability upon proof of issues Notwithstanding the provisions of subsection (a) no person, other than the issuer, shall be lia- ble as provided therein who shall sustain the burden of proof— (1) that before the effective date of the part of the registration statement with respect to which his liability is asserted (A) he had re- signed from or had taken such steps as are per- mitted by law to resign from, or ceased or re- fused to act in, every office, capacity, or rela- tionship in which he was described in the reg- istration statement as acting or agreeing to act, and (B) he had advised the Commission and the issuer in writing that he had taken such action and that he would not be respon- sible for such part of the registration state- ment; or (2) that if such part of the registration state- ment became effective without his knowledge, upon becoming aware of such fact he forthwith acted and advised the Commission, in accord- ance with paragraph (1) of this subsection, and, in addition, gave reasonable public notice that such part of the registration statement had become effective without his knowledge; or (3) that (A) as regards any part of the reg- istration statement not purporting to be made on the authority of an expert, and not pur- porting to be a copy of or extract from a re- port or valuation of an expert, and not pur- porting to be made on the authority of a pub- lic official document or statement, he had, after reasonable investigation, reasonable ground to believe and did believe, at the time such part of the registration statement be- came effective, that the statements therein were true and that there was no omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (B) as regards any part of the registration statement purporting to be made upon his authority as an expert or purporting to be a copy of or extract from a report or valuation of himself as an expert, (i) he had, after reasonable investigation, reason- able ground to believe and did believe, at the time such part of the registration statement became effective, that the statements therein were true and that there was no omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) such part of the registration statement did not fairly represent his statement as an expert or was not a fair copy of or extract from his report or valuation as an expert; and (C) as regards any part of the registration statement purporting to be made on the authority of an expert (other than him- self) or purporting to be a copy of or extract from a report or valuation of an expert (other than himself), he had no reasonable ground to believe and did not believe, at the time such part of the registration statement became ef- fective, that the statements therein were un- true or that there was an omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that such part of the registra- tion statement did not fairly represent the statement of the expert or was not a fair copy of or extract from the report or valuation of the expert; and (D) as regards any part of the registration statement purporting to be a statement made by an official person or pur- porting to be a copy of or extract from a pub- lic official document, he had no reasonable ground to believe and did not believe, at the time such part of the registration statement became effective, that the statements therein were untrue, or that there was an omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that such part of the registration statement did not fairly rep- resent the statement made by the official per- Page 150 TITLE 15—COMMERCE AND TRADE § 77k son or was not a fair copy of or extract from the public official document. (c) Standard of reasonableness In determining, for the purpose of paragraph (3) of subsection (b) of this section, what con- stitutes reasonable investigation and reasonable ground for belief, the standard of reasonableness shall be that required of a prudent man in the management of his own property. (d) Effective date of registration statement with regard to underwriters If any person becomes an underwriter with re- spect to the security after the part of the reg- istration statement with respect to which his li- ability is asserted has become effective, then for the purposes of paragraph (3) of subsection (b) of this section such part of the registration state- ment shall be considered as having become ef- fective with respect to such person as of the time when he became an underwriter. (e) Measure of damages; undertaking for pay- ment of costs The suit authorized under subsection (a) may be to recover such damages as shall represent the difference between the amount paid for the security (not exceeding the price at which the security was offered to the public) and (1) the value thereof as of the time such suit was brought, or (2) the price at which such security shall have been disposed of in the market before suit, or (3) the price at which such security shall have been disposed of after suit but before judg- ment if such damages shall be less than the damages representing the difference between the amount paid for the security (not exceeding the price at which the security was offered to the public) and the value thereof as of the time such suit was brought: Provided, That if the defendant proves that any portion or all of such damages represents other than the depreciation in value of such security resulting from such part of the registration statement, with respect to which his liability is asserted, not being true or omit- ting to state a material fact required to be stat- ed therein or necessary to make the statements therein not misleading, such portion of or all such damages shall not be recoverable. In no event shall any underwriter (unless such under- writer shall have knowingly received from the issuer for acting as an underwriter some benefit, directly or indirectly, in which all other under- writers similarly situated did not share in pro- portion to their respective interests in the un- derwriting) be liable in any suit or as a con- sequence of suits authorized under subsection (a) for damages in excess of the total price at which the securities underwritten by him and distributed to the public were offered to the pub- lic. In any suit under this or any other section of this subchapter the court may, in its discre- tion, require an undertaking for the payment of the costs of such suit, including reasonable at- torney’s fees, and if judgment shall be rendered against a party litigant, upon the motion of the other party litigant, such costs may be assessed in favor of such party litigant (whether or not such undertaking has been required) if the court believes the suit or the defense to have been without merit, in an amount sufficient to reim- burse him for the reasonable expenses incurred by him, in connection with such suit, such costs to be taxed in the manner usually provided for taxing of costs in the court in which the suit was heard. (f) Joint and several liability; liability of outside director (1) Except as provided in paragraph (2), all or any one or more of the persons specified in sub- section (a) shall be jointly and severally liable, and every person who becomes liable to make any payment under this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment, unless the person who has become liable was, and the other was not, guilty of fraudulent misrepresentation. (2)(A) The liability of an outside director under subsection (e) shall be determined in ac- cordance with section 78u–4(f) of this title. (B) For purposes of this paragraph, the term ‘‘outside director’’ shall have the meaning given such term by rule or regulation of the Commis- sion. (g) Offering price to public as maximum amount recoverable In no case shall the amount recoverable under this section exceed the price at which the secu- rity was offered to the public. (May 27, 1933, ch. 38, title I, § 11, 48 Stat. 82; June 6, 1934, ch. 404, title II, § 206, 48 Stat. 907; Pub. L. 104–67, title II, § 201(b), Dec. 22, 1995, 109 Stat. 762; Pub. L. 105–353, title III, § 301(a)(2), Nov. 3, 1998, 112 Stat. 3235.) Editorial Notes AMENDMENTS 1998—Subsec. (f)(2)(A). Pub. L. 105–353 made technical amendment to reference in original act which appears in text as reference to section 78u–4(f) of this title. 1995—Subsec. (f). Pub. L. 104–67 designated existing provisions as par. (1), substituted ‘‘Except as provided in paragraph (2), all’’ for ‘‘All’’, and added par. (2). 1934—Subsec. (a). Act June 6, 1934, inserted last par. Subsecs. (b)(3), (c) to (e). Act June 6, 1934, amended subsecs. (b)(3) and (c) to (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Pub. L. 104–67, title II, § 202, Dec. 22, 1995, 109 Stat. 762, provided that: ‘‘The amendments made by this title [amending this section and section 78u–4 of this title] shall not affect or apply to any private action arising under the securities laws commenced before and pend- ing on the date of enactment of this Act [Dec. 22, 1995].’’ CONSTRUCTION OF 1995 AMENDMENT Nothing in amendment by Pub. L. 104–67 to be deemed to create or ratify any implied right of action, or to prevent Commission, by rule or regulation, from re- stricting or otherwise regulating private actions under Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), see section 203 of Pub. L. 104–67, set out as a Construc- tion note under section 78j–1 of this title. Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of Page 151 TITLE 15—COMMERCE AND TRADE § 77n such Commission, see Reorg. Plan No. 10 of 1950, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title. § 77l. Civil liabilities arising in connection with prospectuses and communications (a) In general Any person who— (1) offers or sells a security in violation of section 77e of this title, or (2) offers or sells a security (whether or not exempted by the provisions of section 77c of this title, other than paragraphs (2) and (14) of subsection (a) of said section), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes 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 (the purchaser not knowing of such untruth or omission), and who shall not sustain the bur- den of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable, subject to subsection (b), to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consid- eration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security. (b) Loss causation In an action described in subsection (a)(2), if the person who offered or sold such security proves that any portion or all of the amount re- coverable under subsection (a)(2) represents other than the depreciation in value of the sub- ject security resulting from such part of the pro- spectus or oral communication, with respect to which the liability of that person is asserted, not being true or omitting to state a material fact required to be stated therein or necessary to make the statement not misleading, then such portion or amount, as the case may be, shall not be recoverable. (May 27, 1933, ch. 38, title I, § 12, 48 Stat. 84; Aug. 10, 1954, ch. 667, title I, § 9, 68 Stat. 686; Pub. L. 104–67, title I, § 105, Dec. 22, 1995, 109 Stat. 757; Pub. L. 106–554, § 1(a)(5) [title II, § 208(a)(3)], Dec. 21, 2000, 114 Stat. 2763, 2763A–435.) Editorial Notes AMENDMENTS 2000—Subsec. (a)(2). Pub. L. 106–554 substituted ‘‘para- graphs (2) and (14)’’ for ‘‘paragraph (2)’’. 1995—Pub. L. 104–67 designated existing provisions as subsec. (a), inserted heading, inserted ‘‘, subject to sub- section (b),’’ after ‘‘shall be liable’’ in concluding provi- sions, and added subsec. (b). 1954—Act Aug. 10, 1954, inserted ‘‘offers or’’ before ‘‘sells’’ in pars. (1) and (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Pub. L. 104–67, title I, § 108, Dec. 22, 1995, 109 Stat. 758, provided that: ‘‘The amendments made by this title [enacting sections 77z–1, 77z–2, 78u–4, and 78u–5 of this title and amending this section and sections 77t, 78o, 78t, and 78u of this title and section 1964 of Title 18, Crimes and Criminal Procedure] shall not affect or apply to any private action arising under title I of the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.] or title I of the Securities Act of 1933 [15 U.S.C. 77a et seq.], commenced before and pending on the date of en- actment of this Act [Dec. 22, 1995].’’ EFFECTIVE DATE OF 1954 AMENDMENT Amendment by act Aug. 10, 1954, effective 60 days after Aug. 10, 1954, see note under section 77b of this title. CONSTRUCTION OF 1995 AMENDMENT Nothing in amendment by Pub. L. 104–67 to be deemed to create or ratify any implied right of action, or to prevent Commission, by rule or regulation, from re- stricting or otherwise regulating private actions under Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), see section 203 of Pub. L. 104–67, set out as a Construc- tion note under section 78j–1 of this title. § 77m. Limitation of actions No action shall be maintained to enforce any liability created under section 77k or 77l(a)(2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable dili- gence, or, if the action is to enforce a liability created under section 77l(a)(1) of this title, un- less brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability cre- ated under section 77k or 77l(a)(1) of this title more than three years after the security was bona fide offered to the public, or under section 77l(a)(2) of this title more than three years after the sale. (May 27, 1933, ch. 38, title I, § 13, 48 Stat. 84; June 6, 1934, ch. 404, title II, § 207, 48 Stat. 908; Pub. L. 105–353, title III, § 301(a)(3), Nov. 3, 1998, 112 Stat. 3235.) Editorial Notes AMENDMENTS 1998—Pub. L. 105–353 substituted ‘‘77l(a)(2)’’ for ‘‘77l(2)’’ in two places and ‘‘77l(a)(1)’’ for ‘‘77l(1)’’ in two places. 1934—Act June 6, 1934, substituted ‘‘one year’’ for ‘‘two years’’, ‘‘three years’’ for ‘‘ten years’’, and in- serted ‘‘or under section 77l(2) of this title more than three years after the sale’’. § 77n. Contrary stipulations void Any condition, stipulation, or provision bind- ing any person acquiring any security to waive compliance with any provision of this sub- chapter or of the rules and regulations of the Commission shall be void. (May 27, 1933, ch. 38, title I, § 14, 48 Stat. 84.) Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 10 of 1950, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title.