Thursday, June 1, 2023

Supreme Court Upholds "Tracing" Requirement for Section 11 Cases

Earlier today the Supreme Court released its opinion in Slack Technologies LLC v. Pirani.  It ruled that a plaintiff seeking to bring a Section 11 claim must trace their stock to a registration statement.  Of course, companies today now go public through direct listings or other methods where the pool of publicly traded stock includes some issued pursuant to registration statement and some from other prior holders.  Functionally, this often makes it impossible to for anyone buying shares in the open market to trace whether their shares were issued pursuant to a registration statement or simply sold by someone else.

The unanimous decision follows the vast majority of circuit courts to consider the issue.  It pointed out that the issue was previously addressed by Judge Friendly in Barnes v. Osofsky, 373 F. 2d 269, 272 (CA2 1967).

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