concurring:
I concur in all respects in Judge Lumbard’s clear, concise and, in my view, correct majority opinion.
In view of the characteristically thoughtful and earnest dissent of our Brother Mulligan, however, I should like to add a few words, partly to supplement Judge Lumbard’s opinion, but chiefly to suggest that Judge Mulligan’s dissent be read in the light of the following observations.
First, in urging that customers of a broker-dealer in liquidation have no implied right of action for damages under Section 17 of the Exchange Act against accountants who prepare false or misleading reports required by that statute, the dissent understandably is disturbed by the unanimous opinion in Cort v. Ash, 422 U.S. 66, 78 (1975), as recently reaffirmed in Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 37-45 (1977). Granted that the dissent’s massive effort to distinguish or to apply a gloss to Ash is an artful attempt to circumvent this key decision, I fear that our dissenting colleague has misapprehended the essential *626purpose of Ash in stating certain factors to be taken into consideration in determining whether to imply a right of action under a given statute. The dissent at the outset, post, at 628, emphasizes that Ash is not relevant to a case which arises under a statute which expressly provides for a private right of action. This overlooks the fact that the Supreme Court specifically applied the Ash analysis in Piper, supra, 430 U.S. at 37-41, in determining whether a private remedy was implicit in Section 14(e) of the same statute with which we are here concerned, i. e. the Exchange Act. Assuming that what the dissent intends to emphasize, post, at 628, is that Ash does not apply when an express remedy is provided for the specific wrong complained of, it must be remembered that the Court reaffirmed the implication of a private right of action under Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730 (1975), despite the absence of legislative history on the subject, id. at 737, much less “clear contrary evidence” of legislative intent. Post, at 630.
Second, the dissent’s displeasure with J. I. Case Co. v. Borak, 377 U.S. 426 (1964), likewise is understandable. This seminal opinion written by the late Mr. Justice Tom Clark for a unanimous Supreme Court, in holding that Section 27 of the Exchange Act provided the jurisdictional underpinning for an implied private right of action for damages (as well as for declaratory and equitable relief) arising from violations of Section 14(a) of the Exchange Act, id. at 430-35, expressly recognized that “Private enforcement of [Commission rules] provides a necessary supplement to Commission action”, id. at 432, and that “[I]t is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose.” Id. at 433. Despite our Brother Mulligan’s herculean effort in dissent to buttress his assertion that Borak “has been significantly restricted by more recent decisions of the Supreme Court”, post, at 628, those decisions strike me as expressly and emphatically reaffirming the Borak rule1 — as Mr. Justice Stevens stated in Piper, supra, 430 U.S. at 67, “Borak remains a viable precedent.”
Third, the dissent speaks disparagingly of the SEC amicus brief. Post, at 627 n. 1. As Judge Lumbard correctly points out, ante, at 619 n. 3, we were aided materially by the SEC brief, whereas the district court did not have the advantage of knowing of the SEC’s position. Here again, our Brother Mulligan’s attempt to disparage the SEC brief is understandable, for it urges forcefully and cogently that SIPC should be permitted to assert a private right of action under Section 17 of the Exchange Act under the circumstances of this case. But far more basic than whether the SEC as amicus supports or opposes one side or the other in litigation under the federal securities laws, is that the position of the SEC should be known to the court. That is the point of *627Judge Lumbard’s observation referred to above. And it is especially important in a case of first impression such as the instant one involving a statute under which Congress has imposed on the Commission specific responsibilities.2 Wholly aside from the instant case — where I find the SEC amicus brief to measure up to the Commission’s high standard of competence and fairness — I do hope that our Brother Mulligan’s disparagement of the SEC amicus brief will not be construed as a judicial signal, even in dissent, that the Commission should retreat to its position of a generation ago which drew sharp criticism from our Court. Compare Blau v. Mission Corp., 212 F.2d 77, 81 (2 Cir.), cert. denied, 347 U.S. 1016 (1954), and Roberts v. Eaton, 212 F.2d 82, 84 (2 Cir.), cert. denied, 348 U.S. 827 (1954), with Studebaker v. Gittlin, 360 F.2d 692, 695 (2 Cir. 1966), and Greene v. Dietz, 247 F.2d 689, 695-98 (2 Cir. 1957) (concurring and dissenting opinions; per curiam opinion on rehearing). See Some Practical Aspects: The SEC and The Federal Judiciary, 41 A.B.A.J. 1136, 1137-38 (1955).3
Accordingly, after carefully considering Judge Mulligan’s dissenting opinion, especially in the light of the observations set forth above, I concur without qualification in Judge Lumbard’s majority opinion.
. For example, in Piper, supra, 430 U.S. at 25, Chief Justice Burger stated:
“This Court has nonetheless held that in some circumstances a private cause of action can be implied with respect to the 1934 Act’s antifraud provisions, even though the relevant provisions are silent as to remedies. J. I. Case Co. v. Borak, 377 U.S. 426 (1964) (§ 14(a)); Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n. 9 (1971) (§ 10(b)).”
In SIPC v. Barbour, 421 U.S. 412, 423 (1975), referring to Borak, Mr. Justice Marshall summarized its holding:
“In light of the ‘broad remedial purposes’ of the Act and the SEC’s representation that private enforcement was necessary to effectuate those purposes, the Court held that the action for damages could be maintained.”
And in Blue Chip Stamps, supra, 421 U.S. at 730, after summarizing the 25 year development of the decisional law that there is an implied private right of action under Rule 1 Ob-5, Mr. Justice Rehnquist referred to Borak as follows:
“Such a conclusion was, of course, entirely consistent with the Court’s recognition in J. I. Case Co. v. Borak, 377 U.S. 426, 432 (1964), that private enforcement of Commission rules may ‘[provide] a necessary supplement to Commission action.’ ”
These decisions do not strike me as significantly “restricting” Borak; rather, they seem quite clearly to reaffirm Borak as a “viable precedent”, each case turning of course on the particular statute or rule under consideration.
. Section 7 of SIPA, 15 U.S.C. § 78ggg (1976). See SIPC v. Barbour, supra, 421 U.S. at 417.
The SEC cogently summarizes in its brief filed in our Court its interest in the instant appeal as follows:
“The Commission respectfully submits this brief as amicus curiae because this appeal raises significant issues which could materially affect its administration of the federal securities laws. We believe . . that permitting a private right of action under Section 17 of the Securities Exchange Act will provide a necessary supplement to the Commission’s efforts to enforce that section and the rules and regulations thereunder. In addition, financial statements submitted by broker-dealers pursuant to the Act play a key role in the Commission’s administration and enforcement of various statutory provisions designed to protect against loss of the funds and securities of customers of broker-dealers and to maintain confidence in the securities markets at a high level. The availability of a right of action under Section 17 will thus have a direct bearing on the overall effectiveness of such statutory and regulatory provisions as those regarding hypothecation and segregation of securities and cash, and the net capital rule, designed to ensure the ability of brokers to meet their financial obligations as custodians of customer property. In addition, the Commission has ‘plenary authority’ with respect to the operations of the Securities Investor Protection Corporation, and is therefore concerned that SIPC have the ability to recover funds needlessly expended due to the wrongful acts of others, thus preserving the funds available to compensate losses suffered by the customers of brokers.” (footnotes omitted). SEC Amicus Curiae Brief, filed August 31, 1977, at 3-4.
. I am pleased to note that, in response to my concurring opinion, Judge Mulligan very commendably has disclaimed any intention to disparage the SEC amicus brief. Post, at 627-28 n. 1, last paragraph. This reflects the good judgment and fairness for which our distinguished colleague is well known. I think that Judge Mulligan, as a former Dean of the Ford-ham Law School, would join in taking judicial notice of one of the leading expositions of the history and functions of the amicus curiae through centuries of development of the law. Beckwith and Sobernheim, Amicus Curiae— MINISTER OF JUSTICE, 17 Fordham L.Rev. 38 (1948).