United States Court of Appeals
For the First Circuit
No. 07-1384
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff, Appellant,
v.
JAMES TAMBONE; ROBERT HUSSEY,
Defendants, Appellees.
Before
Lynch, Chief Judge,
Torruella, Boudin, Lipez and Howard, Circuit Judges.
ORDER OF COURT
Entered: February 23, 2009
The court has under consideration the appellees' petitions for rehearing en banc. In light of
the complexity of this case and the seriousness of the issues presented, the court has determined it
would be useful to obtain the views of the SEC and of amici, and to permit a response from
petitioners, on the question of whether to grant the petitions solely as to the Rule 10b-5 issue. The
Rule 10b-5(b) issue focuses on whether primary liability extends, on the basis of an implied
statement theory, to underwriters of a mutual fund who are responsible for and direct the firm's
efforts to sell shares of the fund and who, in connection with these sales efforts, disseminate
prospectuses containing material statements that they knew, or were reckless in not knowing, were
false.
In the course of addressing this issue, the briefs should also address several related
considerations:
1. Would the panel holding also apply to private party suits and, if so, what principles, if
any, would limit the reach of that holding in private party actions under Rule 10b-5?
2. Assuming the SEC has stated a claim for aiding and abetting liability, what purpose is
served by expanding the scope of primary liability under Rule 10b-5?
3. What factual information about the role of underwriters in the securities industry is
pertinent to the issue?
The SEC brief is due 30 days from the date of this order. Amicus briefs and any responsive
briefs from petitioners, shall be due 30 days thereafter. Briefs must comply with otherwise
applicable rules concerning format, number of copies, service, and other requirements. No brief may
exceed 30 pages.
The Clerk is directed to serve forthwith a copy of this order on certain potential amici
organizations, as listed in the attachment hereto. Other amici are welcome to file amicus briefs. All
amici must seek leave of the court, as otherwise required by applicable rules.
By the Court:
/s/ Richard Cushing Donovan, Clerk
cc: Hon. Nathaniel M. Gorton, Ms. Sarah A. Thornton, Mr. Pappalardo, Mr. Feldman, Mr. Scherker,
Mr. Joralemon, Mr. Sten, Ms. Foster, Mr. Cadigan, Ms. Moore, Mr. London, Mr. Avery, Mr. Libby,
Mr. Thomas, & Mr. Commisso, Ms. DeGiacomo, Chamber of Commerce of the United States,
Consumer Federation of America, Financial Industry Regulatory Authority, National Association
of Shareholder and Consumer Attorneys, North American Securities Administrators Association,
Securities Industry and Financial Markets Association, and U.S. Public Interest Research Groups
(PIRG).
Appendix
Potential Amici
Chamber of Commerce of the United States, Consumer Federation of America, Financial
Industry Regulatory Authority, National Association of Shareholder and Consumer Attorneys, North
American Securities Administrators Association, Securities Industry and Financial Markets
Association, and U.S. Public Interest Research Groups (PIRG).