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: July 22, 2009
Defendants James Tambone and Robert Hussey filed petitions for en banc review. The
petitions challenged the panel's ruling on the issue of primary liability under Rule 10b-5(b), which
was based on an implied statement theory; they also challenged the panel's ruling on the Section
17(a)(2) claim. Tambone further argued that the panel's decision on the issue of aiding and abetting
liability was erroneous because it depended on the panel's Rule 10b-5(b) primary liability holding.
A majority of the active judges of this court have voted to grant rehearing en banc on the
Rule 10b-5(b) issues. Judges Lipez and Torruella dissent from the grant of en banc review. The
petitions are denied as to review of the panel's Section 17(a)(2) ruling. In accordance with customary
practice, the opinion released on December 3, 2008 is withdrawn, and the judgment entered on the
same date is vacated. See 1st Cir. I.O.P. X(D).
The parties are permitted, if they wish, to file simultaneous supplemental briefs limited to
the Rule 10b-5(b) issues. The court will not accept further briefing or argument on any other
issues. Any supplemental briefs shall not exceed 30 pages, shall be in the form required by this
court's local rules, and shall be filed on or before September 4, 2009.
The court also solicits amicus briefs limited to the Rule 10b-5(b) issues. Motions for
leave to file amicus briefs from those who have not already filed briefs must be filed with
attached brief, limited to 15 pages, by September 4, 2009.
Fourteen copies of any supplemental brief or original amicus brief should be provided,
including one copy in PDF format on a disk. Existing amici may also file supplemental briefs by
the same deadline, limited to 15 pages. Copies of briefs already filed are already available to all
of the judges.
The case will be heard on Tuesday, October 6, 2009 at 11:30 a.m., En Banc Courtroom,
7th Floor, John Joseph Moakley United States Courthouse, One Courthouse Way, Boston,
Massachusetts.
By the Court:
/s/ Richard Cushing Donovan, Clerk
cc:
Avery, John W.
Bernstein, Richard D.
Cadigan, Luke T.
Commisso, John J.
Cox, Douglas R.
DeGiacomo, Paula L.
Feldman, Warren
Foster, Jennifer Martin
Joralemon, Christopher M.
Libby, Frank Albert
London, David H.
Miller, Arthur R.
Moore, Celia Delano
Pagliaro, John
Pappalardo, A. John
Phillips, Carter G.
Robbins, Lawrence S.
Scherker, Elliot H.
Scoville, William B.
Sten, John A.
Thomas, David G.