concurring in part and dissenting in part:
I agree with the majority that the Colorado Securities Act applies to Howard Rosen-thal’s claims. I also agree that, on this record, the presumption of reliance in Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), is inapplicable, and that this court need not address the availability of the doctrine of fraud-created-the-market. However, I disagree with three of the majority’s conclusions: (1) that the question of the necessity of pleading reliance under the Colorado Securities Act is properly before this court; (2) that the court cannot appropriately consider evidentiary presumptions at this stage of the proceedings; and (3) that the purchasers have alleged sufficient facts to sustain them claims under sections 11-51-123 and 11-51-125(2) of the Colorado Securities Act. §§ 11-51-123 and 11-51-125(2), 4B C.R.S. (1987), repealed by ch. 82, sec. 1, §§ 11-51-101 to -802, 1990 Colo. Sess. Laws 700, and recodified as amended at §§ 11-51-501 and 11-51-604, 4B C.R.S. (1995 Supp.). Accordingly, I dissent.
I
The majority opinion centers on whether a plaintiff must plead reliance to establish a claim under sections 11-51-123 and 11 — 51— 125(2) of the Colorado Securities Act. This issue is not properly before us on this certio-rari.1 In their petition for writ of certiorari, the purchasers did not challenge whether reliance was required, but whether reliance could be presumed in this case. The Colorado Securities Commissioner, acting as ami-cus, argued that “there is no express statutory requirement under § 123(1) of the 1981 Act that reliance be pleaded or proven.” The purchasers subsequently adopted this argument in a footnote to their response brief. It is improper for this court to consider new issues introduced by amici. Farmers’ Union Ditch Co. v. Rio Grande Canal Co., 37 Colo. 512, 522, 86 P, 1042, 1045 (1906). Accord Moffat Tunnel Improvement Dist. v. Denver & S.L. Ry. Co., 45 F.2d 715, 722 (1930), cert. denied, 283 U.S. 837, 51 S.Ct. 485, 75 L.Ed. 1448 (1931); Eugene Cervi & Co. v. Russell, 31 Colo.App. 525, 530, 506 P.2d 748, 751 (1972), aff'd, 184 Colo. 282, 519 P.2d 1189 (1974). By deciding the necessity of pleading reliance in an action under the Colorado Securities Act, the majority skirts the issues raised by the parties and addresses only a new issue interjected by the amicus brief.
II
As stated by the majority, we view with disfavor a C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim, Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286, 1291 (Colo.1992), and uphold a district court’s *1107grant of such a motion only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”2 Id. (citation and internal quotation marks omitted). See maj. op. at 1099. However, where “matters outside the pleading are presented to and not excluded by the court, the [12(b)(5) ] motion shall be treated as one for summary judgment.” C.R.C.P. 12(b); Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S.Ct. 715, 21 L.Ed.2d 706 (1969). Here the record contains “matters outside the pleading,” including the Official Statement and deposition excerpts in which Rosenthal admits he did not directly rely on the Official Statement. Thus, the defendants’ motions should be treated as motions for summary judgment.
A motion for summary judgment is properly granted “when the pleadings, affidavits, depositions, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Civil Serv. Comm’n v. Pinder, 812 P.2d 645, 649 (Colo.1991). See C.R.C.P. 56(c). The movant must carry the burden of establishing the nonexistence of a genuine issue of material fact, Pinder, 812 P.2d at 649, and “may satisfy this burden by demonstrating that there is an absence of evidence in the record to support the non-moving party’s case.” Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (holding that, when the nonmovant bears the burden of proof at trial, summary judgment is warrant- ' ed if the nonmovant “fails to make a showing sufficient to establish the existence of an element essential to [its] case”). The “wholesome utility” of a motion for summary judgment “is, in advance of trial, to test, not as formerly on bare contentions found in the legal jargon of pleadings, but on the intrinsic merits, whether there is in actuality a real basis for relief or defense.” Sullivan v. Davis, 172 Colo. 490, 496, 474 P.2d 218, 221 (1970) (citation and internal quotation marks omitted). Unlike rule 12(b), rule 56 does not presume “that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990).
As discussed in Part IV of this dissent, the defendants here have pointed to an absence of evidence in the record to support the purchasers’ case under sections 11-51-123 and 11-51-125(2) of the Colorado Securities Act, and the purchasers have failed to establish a real basis for relief. Consequently, the motions for summary judgment should be granted.
Ill
This court may appropriately consider evi-dentiary presumptions at this stage of the proceedings. The majority correctly states that presumptions are “procedural tools to delineate the evidentiary burdens of the parties at trial.” See maj. op. at 1103. However, evidentiary standards at trial and evidence to be considered on a motion for summary judgment are not so easily severed.
[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his ease by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in *1108fact provided by the applicable evidentiary standards.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Contrary to the majority’s conclusion, an evidentiary presumption may be determinative of a pre-trial motion. See, e.g., Basic Inc. v. Levinson, 485 U.S. 224, 247, 108 S.Ct. 978, 991, 99 L.Ed.2d 194 (1988) (allowing a presumption of reliance for a pre-trial class certification motion). See also Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (affirming a grant of summary judgment based upon a conclusive presumption of paternity). The presumption of reliance, if invoked, is rebuttable and “subject on remand to such adjustment, if any, as developing circumstances demand.” Basic, 485 U.S. at 250, 108 S.Ct. at 993.
IV
In any event, I disagree with the majori1 ty’s conclusion that the purchasers need plead only “that a defendant made material misstatements or omissions that caused the plaintiffs harm” to sustain their claims under sections 11-51-123 and 11-51-125(2) of the Colorado Securities Act. See maj. op. at 1103. To be entitled to relief, the purchasers must establish reliance on the defendants’ statements or material omissions as an element of their private claims under sections 11-51-123 and 11-51-125(2). See Boettcher & Co. v. Munson, 854 P.2d 199, 208 (Colo.1993).3
Traditionally, a private action for damages under rule 10b-5 is predicated on a plaintiffs direct reliance on a defendant’s misrepresentations or material omissions. A plaintiff proves reliance by showing that “the misrepresentation is a substantial factor in determining the course of conduct which results in ... loss.” T.J. Raney & Sons v. Fort Cobb, Okla. Irrigation Fuel Auth., 717 F.2d 1330, 1332 (10th Cir.1983) (citation and internal quotation marks omitted), cert. denied, 465 U.S. 1026, 104 S.Ct. 1285, 79 L.Ed.2d 687 (1984).
Proof of reliance demonstrates the causal connection between a defendant’s fraud and a plaintiffs loss. See id.; In re Storage Technology Corp. Sec. Litig., 630 F.Supp. 1072, 1077 (D.Colo.1986) (citing Blackie v. Barrack, 524 F.2d 891 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976)) (discussing reliance required under rule 10b-5); Cathy Stricklin Krendl, The Securities Act of 1981: A Reduction in Duplicate Regulation, 10 Colo. Law. 2158, 2170-71 (Sept. 1981). The majority holds that “allegations of reliance or causation are necessary to support a cognizable claim.” Maj. op. at 1101-1102. I disagree and conclude that allegations of direct or presumed reliance are necessary to satisfy the threshold level of causation which, in turn, is necessary to support a cognizable claim. That is, the purchasers must allege that their reliance on the defendant’s misrepresentations caused the purchasers to suffer a financial loss. See §§ 11-51-123, -125(2). Cf. 3 Edward J. Dev-itt et al., Federal Jury Practice and Instructions § 101.02 (4th ed. 1987).4
The United States Supreme Court has held that “positive proof of reliance” is not a prerequisite to recovery in a securities fraud case. Affiliated Ute, 406 U.S. at 153, 92 S.Ct. at 1472. However, that court has approved only two theories of presumptive reliance: (1) presumed reliance on material omissions, id.; and (2) presumed reliance *1109under the doctrine of fraud-on-the-market.5 See Basic, 485 U.S. at 243, 108 S.Ct. at 989. Some federal courts have approved the doctrine of fraud-created-the-market as a third theory of presumptive reliance.6 See, e.g., T.J. Raney, 717 F.2d 1330. All three theories are theories of presumed reliance, not of presumed or actual causation.
On the record before us, the purchasers admittedly did not read the Official Statement and, thus, cannot allege or prove direct reliance. Absent direct reliance, the purchasers must allege and prove facts sufficient to allow a presumption of reliance.
I agree with the majority that the presumption of “Affiliated Ute is totally inapplicable to the present ease.” Maj. op. at 1103. The purchasers do not raise the doctrine of fraud-on-the-market. Finally, as discussed below, the purchasers have not alleged or otherwise proven sufficient facts to invoke the presumption of fraud-created-the-market, even were we to hold that theory applicable.
To invoke the presumption of fraud-created-the-market, the purchasers must allege all of its various elements. See Basic, 485 U.S. at 248 n. 27, 108 S.Ct. at 993 n. 27 (holding that in order to invoke the presumption of fraud-on-the-market for a pre-trial motion, the plaintiff must allege: “(1) that the defendant made public misrepresentations; (2) that the misrepresentations were material,” i.e., that they would “induce a reasonable, relying investor to misjudge the value of the shares;” “(3) that the shares were traded on an efficient market;” and (4) “that the plaintiff traded the shares between the time the misrepresentations were made and the time the truth was revealed”).
The elements of fraud-created-the-market include, at a minimum, the legal or economic unmarketability of the securities at issue. See Ockerman v. May Zima & Co., 27 F.3d 1151, 1159-60 (6th Cir.1994).7 This action simply cannot withstand a motion for summary judgment based on the presumption of fraud-created-the-market. The complaint at hand does not sufficiently allege the unmark-etability of the bonds, nor does the record establish that unmarketability. Rather, the complaint alleges that “[defendants had a duty to promptly disseminate accurate and truthful information ... so that the market price of the District’s 1986 Bonds would be based on truthful and accurate information.” First Am. Class Action Compl. ¶ 24. The complaint also alleges that the purpose and effect of the Official Statement was:
(i) to market otherwise unmarketable bonds, inflate the price of the 1986 Bonds and to conceal the adverse facts concern*1110ing the risks to which payments would be subjected, and (ii) to maintain an artificially high market price for the 1986 Bonds by concealing the true nature of the risk to which the payment would be subjected.
Id. ¶ 66. Although the purchasers’ complaint uses the term “unmarketable,” the substance of their complaint involves the market value of the bonds, not their marketability. Likewise, the record in this case fails to reveal the economic unmarketability of the bonds.
Further, the purchasers do not allege and the record does not reveal legal unmarketa-bility, i.e., that “defendants made misrepresentations or omissions to the issuing municipality or to a regulatory agency such that, had full disclosure been made, the governmental entity would have been required by law to deny the bonds’ issuance.” See Ockerman, 27 F.3d at 1160; T.J. Raney, 717 F.2d at 1333.
The defendants are entitled to summary judgment on this record because they have pointed to the absence of evidence in the record to support reliance on the part of the purchasers and because the purchasers have failed to demonstrate either that a genuine issue of material fact precludes the entry of summary judgment or that a real basis for relief exists. Thus, I respectfully dissent from that portion of the majority’s opinion which allows the purchasers’ claims under sections 11-51-123 and 11-51-125(2) of the Colorado Securities Act to proceed on the allegations made in the purchasers’ first amended class action complaint. On the record before us, I would affirm the entry of judgment for the defendants.
I am authorized to say that Chief Justice VOLLACK joins in this concurrence and dissent.
. The issues on which we granted certiorari are: Whether the court of appeals erred by affirming the district court's dismissal of the fraud claims of municipal bond purchasers by improperly interpreting the pleading requirements of section 11-51-123 of the Colorado Securities Act, §§ 11-51-101 to -908, 4B C.R.S. (1987 & 1994 Supp.).
Whether the court of appeals erred in adopting the fraud-created-the-market doctrine as a substitute for pleading actual reliance under the anti-fraud provisions of the Colorado Securities Act of 1981, § 11-51-123, 4B C.R.S. (1987 & 1994 Supp.).
Whether the Colorado Securities Act of 1981, as set forth in § 11-51-127(1), 4B C.R.S. (1987 & 1994 Supp.), applies to a securities purchase when both the offer and sale take place outside of the state of Colorado.
. Pursuant to C.R.C.P. 54(b), the district court directed the entry of a final judgment on the C.R.C.P. 12(b)(5) dismissal and on the order denying class certification. The court’s action under rule 54 enabled the purchasers to obtain appellate review without delay.
. Although section 11-51-123(1) does not explicitly require reliance, we have held that that section parallels federal rule 10b-5. See Boettcher, 854 P.2d at 208; People v. Riley, 708 P.2d 1359, 1363 (Colo.1985). Rule 10b-5 requires reliance. See O’Connor v. R.F. Lafferty & Co., 965 F.2d 893, 897 (10th Cir.1992).
. The federal instruction lists the essential elements of a 10b-5 claim: (1) that the defendant used an instrumentality of interstate commerce or a facility of a national securities exchange; (2) that the defendant either employed a device, scheme, or artifice to defraud; or misrepresented a material fact or omitted to state a material fact necessary in order to make the statements which were made not misleading, in light of the circumstances; or engaged in a fraud or deceit in connection with the sale or purchase of a security; (3) that the defendant acted knowingly; (4) that the plaintiff justifiably relied upon the defendant’s conduct; and (5) that the plaintiff suffered damages as a result of the defendant's conduct. Devitt, supra § 101.02.
. Fraud-on-the-market creates a rebuttable presumption of reliance based on the theory that the price of a security in an open and developed market is determined by all available, material information, misinformation, and omissions. Basic, 485 U.S. at 241-47, 108 S.Ct. at 988-92. "Accordingly, [under the fraud-on-the-market theory,] any fraudulent misrepresentation or omission will taint the price to the damage of buyers or sellers regardless of their personal knowledge or reliance.” Alter v. DBLKM, Inc., 840 F.Supp. 799, 804 (D.Colo.1993).
. The doctrine of fraud-created-the-market “is based on the theory that investors rely not on the integrity of the market price, but on the integrity of the market itself." Alter, 840 F.Supp. at 805. Consequently, the doctrine holds that investors "should be able to rely on the fact that local governments would not authorize, underwriters would not finance and brokers would not offer to sell bonds they knew were unmarketable.” Ockerman v. May Zima & Co., 27 F.3d 1151, 1159-60 (6th Cir.1994). As articulated by the Fifth Circuit in Shores v. Sklar, 647 F.2d 462 (5th Cir.1981), cert. denied, 459 U.S. 1102, 103 S.Ct. 722, 74 L.Ed.2d 949 (1983), the doctrine of fraud-created-the-market requires that the plaintiff establish "that (1) the defendants knowingly conspired to bring securities onto the market which were not entitled to be marketed, intending to defraud purchasers, (2) [the plaintiff] reasonably relied on the [securities’] availability on the market as an indication of their apparent genuineness, and (3) as a result of the scheme to defraud [the plaintiff] suffered a loss.” Id. at 469-70 (footnote omitted), quoted in T.J. Raney, 717 F.2d at 1332.
.A security is economically unmarketable "if no investor would buy it because, assuming full disclosure, the security is patently worthless.” See Ockerman, 27 F.3d at 1160. A "security is legally unmarketable if, absent fraud, a regulatory agency or the issuing municipality would have been required by law to prevent or forbid the issuance of the security.” Id. If the plaintiff “proves no more than that the bonds would have been offered at a lower price or a higher rate, rather than that they would never have been issued or marketed, he cannot recover.” Shores, 647 F.2d at 470.