Docket Entries Since Last Update
NOTE: This court's RSS feed does not list MOTION entries, so Bloomberg Law cannot detect them and thus they will not be listed here. However, motions will be included if you update the docket.
Codified Statutes
- U.S. Code
- TITLE 15 — COMMERCE AND TRADE
- CHAPTER 2A — SECURITIES AND TRUST INDENTURES(§§ 77a to 77bbbb)
- SUBCHAPTER I — DOMESTIC SECURITIES(§§ 77a to 77aa)
15 U.S.C. § 77z-2. Application of safe harbor for forward-looking statements
(a) Applicability —
This section shall apply only to a forward-looking statement made by—
(1)
an issuer that, at the time that the statement is made, is subject to the reporting
requirements of section 78m(a) or section 78o(d) of this title;
(2)
a person acting on behalf of such issuer;
(3)
an outside reviewer retained by such issuer making a statement on behalf of such issuer;
or
(4)
an underwriter, with respect to information provided by such issuer or information
derived from information provided by the issuer.
(b) Exclusions —
Except to the extent otherwise specifically provided by rule, regulation, or order
of the Commission, this section shall not apply to a forward-looking statement—
(1)
that is made with respect to the business or operations of the issuer, if the issuer—
(A)
during the 3-year period preceding the date on which the statement was first made—
(i)
was convicted of any felony or misdemeanor described in clauses (i) through (iv) of
section 78o(b)(4)(B) of this title; or
(ii)
has been made the subject of a judicial or administrative decree or order arising
out of a governmental action that—
(I)
prohibits future violations of the antifraud provisions of the securities laws;
(II)
requires that the issuer cease and desist from violating the antifraud provisions
of the securities laws; or
(III)
determines that the issuer violated the antifraud provisions of the securities laws;
(B)
makes the forward-looking statement in connection with an offering of securities by
a blank check company;
(C)
issues penny stock;
(D)
makes the forward-looking statement in connection with a rollup transaction; or
(E)
makes the forward-looking statement in connection with a going private transaction;
or
(2)
that is—
(A)
included in a financial statement prepared in accordance with generally accepted accounting
principles;
(B)
contained in a registration statement of, or otherwise issued by, an investment company;
(C)
made in connection with a tender offer;
(D)
made in connection with an initial public offering;
(E)
made in connection with an offering by, or relating to the operations of, a partnership,
limited liability company, or a direct participation investment program; or
(c) Safe harbor
(1) In general —
Except as provided in subsection (b) of this section, in any private action arising
under this subchapter that is based on an untrue statement of a material fact or omission
of a material fact necessary to make the statement not misleading, a person referred
to in subsection (a) of this section shall not be liable with respect to any forward-looking
statement, whether written or oral, if and to the extent that—
(A)
the forward-looking statement is—
(i)
identified as a forward-looking statement, and is accompanied by meaningful cautionary
statements identifying important factors that could cause actual results to differ
materially from those in the forward-looking statement; or
(ii)
immaterial; or (B) the plaintiff fails to prove that the forward-looking statement—
(i)
if made by a natural person, was made with actual knowledge by that person that the
statement was false or misleading; or
(2) Oral forward-looking statements —
In the case of an oral forward-looking statement made by an issuer that is subject
to the reporting requirements of section 78m(a) or section 78o(d) of this title, or by a person acting on behalf of such issuer, the requirement
set forth in paragraph (1)(A) shall be deemed to be satisfied—
(A)
if the oral forward-looking statement is accompanied by a cautionary statement—
(i)
that the particular oral statement is a forward-looking statement; and
(ii)
that the actual results could differ materially from those projected in the forward-looking
statement; and
(B)
if—
(i)
the oral forward-looking statement is accompanied by an oral statement that additional
information concerning factors that could cause actual results to differ materially
from those in the forward-looking statement is contained in a readily available written
document, or portion thereof;
(ii)
the accompanying oral statement referred to in clause (i) identifies the document,
or portion thereof, that contains the additional information about those factors relating
to the forward-looking statement; and
(iii)
the information contained in that written document is a cautionary statement that
satisfies the standard established in paragraph (1)(A).
(3) Availability —
Any document filed with the Commission or generally disseminated shall be deemed to
be readily available for purposes of paragraph (2).
(4) Effect on other safe harbors —
The exemption provided for in paragraph (1) shall be in addition to any exemption
that the Commission may establish by rule or regulation under subsection (g) of this
section.
(d) Duty to update —
Nothing in this section shall impose upon any person a duty to update a forward-looking
statement.
(e) Dispositive motion —
On any motion to dismiss based upon subsection (c)(1) of this section, the court shall
consider any statement cited in the complaint and cautionary statement accompanying
the forward-looking statement, which are not subject to material dispute, cited by
the defendant.
(f) Stay pending decision on motion —
In any private action arising under this subchapter, the court shall stay discovery
(other than discovery that is specifically directed to the applicability of the exemption
provided for in this section) during the pendency of any motion by a defendant for
summary judgment that is based on the grounds that—
(1)
the statement or omission upon which the complaint is based is a forward-looking statement
within the meaning of this section; and
(2)
the exemption provided for in this section precludes a claim for relief.
(g) Exemption authority —
In addition to the exemptions provided for in this section, the Commission may, by
rule or regulation, provide exemptions from or under any provision of this subchapter,
including with respect to liability that is based on a statement or that is based
on projections or other forward-looking information, if and to the extent that any
such exemption is consistent with the public interest and the protection of investors,
as determined by the Commission.
(h) Effect on other authority of Commission —
Nothing in this section limits, either expressly or by implication, the authority
of the Commission to exercise similar authority or to adopt similar rules and regulations
with respect to forward-looking statements under any other statute under which the
Commission exercises rulemaking authority.
(i) Definitions —
For purposes of this section, the following definitions shall apply:
(1) Forward-looking statement —
The term "forward-looking statement" means—
(A)
a statement containing a projection of revenues, income (including income loss), earnings
(including earnings loss) per share, capital expenditures, dividends, capital structure,
or other financial items;
(B)
a statement of the plans and objectives of management for future operations, including
plans or objectives relating to the products or services of the issuer;
(C)
a statement of future economic performance, including any such statement contained
in a discussion and analysis of financial condition by the management or in the results
of operations included pursuant to the rules and regulations of the Commission;
(D)
any statement of the assumptions underlying or relating to any statement described
in subparagraph (A), (B), or (C);
(E)
any report issued by an outside reviewer retained by an issuer, to the extent that
the report assesses a forward-looking statement made by the issuer; or
(F)
a statement containing a projection or estimate of such other items as may be specified
by rule or regulation of the Commission.
(2) Investment company —
The term "investment company" has the same meaning as in section 80a-3(a) of this title.
(3) Penny stock —
The term "penny stock" has the same meaning as in section 78c(a)(51) of this title, and the rules and regulations, or orders issued pursuant to
that section.
(4) Going private transaction —
The term "going private transaction" has the meaning given that term under the rules
or regulations of the Commission issued pursuant to section 78m(e) of this title.
(5) Securities laws —
The term "securities laws" has the same meaning as in section 78c of this title.
(6) Person acting on behalf of an issuer —
The term "person acting on behalf of an issuer" means an officer, director, or employee
of the issuer.
(7) Other terms —
The terms "blank check company", "rollup transaction", "partnership", "limited liability
company", "executive officer of an entity" and "direct participation investment program",
have the meanings given those terms by rule or regulation of the Commission.
May 27, 1933, ch. 38, title I, Sec. 27A, as added Pub. L. 104-67, title I, Sec. 102(a), Dec. 22, 1995, 109 Stat. 749; amended Pub. L. 105-353, title III, Sec. 301(a)(5), Nov. 3, 1998, 112 Stat. 3235; Pub. L. 111-203, title IX, Sec. 985(a)(4), July 21, 2010, 124 Stat. 1933.
AMENDMENTS
2010—Subsec. (c)(1)(B)(ii). Pub. L. 111-203 substituted comma for semicolon after "entity" in introductory provisions.
1998—Pub. L. 105-353 made technical correction relating to placement of section in subchapter.
EFFECTIVE DATE OF 2010 AMENDMENT
Amendment by Pub. L. 111-203 effective 1 day after July 21, 2010, except as otherwise provided, see section 4
of Pub. L. 111-203, set out as an Effective Date note under section 5301 of Title 12, Banks and Banking.
EFFECTIVE DATE
Section not to affect or apply to any private action arising under this subchapter
or title I of the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), commenced before and pending on Dec. 22, 1995, see section 108 of Pub. L. 104-67, set out as an Effective Date of 1995 Amendment note under section 77l of this title.
CONSTRUCTION
Nothing in section deemed to create or ratify any implied right of action, or to prevent
Commission, by rule or regulation, from restricting 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 note under section 78j-1 of this title.