On April 12, 2024, the U.S. Supreme Court issued an important
decision in the case of Macquarie Infrastructure Corp. v. Moab
Partners, L.P., No. 22-1165. Justice Sotomayor, writing for a
unanimous Court, ruled that "pure omissions are not actionable
under Rule 10b-5(b)." In other words, a pure omission (i.e.,
where a speaker says nothing) cannot support a private claim under
Section 10(b) of the Securities Exchange Act of 1934 (the
"Exchange Act") and Rule 10b–5, even if such an
omission could constitute a violation of Item 303 of Regulation S-K
("Item 303"). The decision, which can be found
here, resolves a split among circuit courts, narrows the scope
of public companies' liability for private rights of action
under federal securities laws, and is generally being regarded as a
significant win for publicly traded companies.
