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Slack Technologies v. Pirani

Oral argument transcript · No. 22-200 · October Term 2022 · argued April 17, 2023 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: Mr. Hungar. ORAL ARGUMENT OF THOMAS G. HUNGAR ON BEHALF OF THE PETITIONERS

Thomas G. Hungar: Thank you, Mr. Chief Justice, and may it please the Court: Sections 11 and 12 of the '33 Act expressly reference and enforce the registration statement and prospectus requirements imposed by Section 5 of the Act, 15 U.S.C. 77e. In construing the term "such security," therefore, it's appropriate to look to the meaning of that same term as used in Section 5, the source of the prohibitions enforced by Sections 11 and 12. And it's undisputed that "such security" in Section 5 consistently refers only to shares that are subject to registration, never to exempt shares. "Such security" in Sections 11 and 12 should be given the same meaning. That reading is confirmed by this Court's decision in Gustafson, which held that it's more reasonable to interpret the liability provisions of the '33 Act as providing remedies for violations of the obligations it had Official 1 created, not as imposing liabilities independent of the substantive obligations of the Act. Respondent's contrary interpretation would run roughshod over the core statutory distinction between registered and exempt shares, which is fundamental to the structure and operation of the '33 Act, and it would dramatically expand the scope of liability, disrupt the capital formation process, and upset settled expectations by overturning decades of case law and SEC interpretation consistently holding that plaintiffs must prove they purchased registered shares. Respondent can't identify a single case in the 90-year history of the Securities Act imposing Section 11 liability on exempt shares. Congress, despite revisiting the Act numerous times over the years, has been content to leave the law that way. This Court should reject Respondent's attempt to overturn that long-settled understanding. I welcome the Court's questions.

Justice Thomas: You mentioned 90-year history, but have we had direct listing before? Official 1 I mean, that seems to be what's causing the problem.

Thomas G. Hungar: We haven't had direct listing before, Your Honor, but, certainly, there are other circumstances, and it's undisputed that there are many other circumstances, in which the tracing requirement, given the modern operation of the securities markets, is difficult or sometimes impossible for plaintiffs to -- to satisfy, but that has not led Congress to change the law, and it has not led the SEC to adopt any of the possible mechanisms it could adopt to address that concern if it felt it should do so.

Justice Thomas: You mentioned the tracing requirement. The -- could you speak a little bit about where that comes from and why there's a tracing requirement?

Thomas G. Hungar: Well, so, fundamentally, it's -- it's -- there's no doubt that Congress intended and required there to be tracing and expected tracing would be required.

Justice Thomas: For each share, as opposed to simply saying there's registration, and as a result of that, the stocks are being Official 1 sold?

Thomas G. Hungar: Because -- because the -- the -- again, the core distinction in the Act is between shares that are registered and shares that aren't. So, for instance, putting aside the issues in this case, Section 12(a)(1), which is -- creates a cause of action for unregistered shares, in order to prevail on that cause of action, a plaintiff obviously has to prove that they purchased unregistered shares, not registered shares. That's been in the Act from the beginning. So there's no doubt that Congress knew that plaintiffs would be required to trace. The same is true under Sections 11 and 12(a)(2) for all the reasons that we've articulated.

Justice Thomas: Finally, on the -- why -- do you think that 11 and 12 rise and fall together?

Thomas G. Hungar: We do, and -- and this Court's decision in Gustafson, I think, makes that same point, that the -- the -- a core rationale of the Court's decision in Gustafson, as I said, is that the -- the liability provisions imposed by Sections 11 and 12 should Official 1 be construed co-extensively with the obligations they enforce. The obligations they enforce arise under Section 5, which imposes an obligation to register particular securities, the shares that -- that have to be registered, and requires a prospectus to be delivered only in connection with particular securities, namely, registered securities.

Justice Jackson: But isn't -- isn't 12(a)(2) broader? I understood 12(a)(2) to also include at least some exempt shares. So I -- I go back to what Justice Thomas was just saying about them rising and falling together. It seems as though 12(a)(2) at least, that liability provision is broader.

Thomas G. Hungar: You're -- you're correct, Your Honor, in that Section 12(a)(2) expressly brings back into the scope of liability certain categories of exempt shares, namely, those exempted by Section 3, which exempts particular classes of securities from other obligations of the Act. So, under Section 12(a)(2), Congress specifically spoke to the question of which exempt shares should be subjected to liability.

Justice Jackson: Right. But doesn't Official 1 that undermine your sort of broader point that all of the liability that Congress was thinking about with respect to Sections 11 and 12 run to registered shares? I mean, we have a discussion in 12 that, as you say, points to certain exempt shares and, I think, preserves liability with respect to those. So --

Thomas G. Hungar: Well, it does, again, because Congress explicitly said so, but it -- but, importantly, the parenthetical that -- that brings Section 3 exempt shares back into the scope of liability under Section 12(a)(2) refers only to Section 3, not to Section 4. And this Court in Gustafson relied on that distinction and said that that silence, that -- that congressional silence with respect to Section 4, as opposed to the congressional reference to Section 3, must be given effect.

Justice Sotomayor: But why would it needed to have mentioned Section 4? On Section 3, it needed to do that because it's -- Section 12 itself states that it applies to most securities exempt under Section 3. But Section 4 really exempts only certain transactions.

Thomas G. Hungar: Correct. Official

Justice Sotomayor: Not all unregistered, only certain transactions that are unregistered.

Thomas G. Hungar: Correct.

Justice Sotomayor: So it seems to me that the negative of Section 4 is, if it's not mentioned, it's covered by 12.

Thomas G. Hungar: Well, this Court in Gustafson expressly addressed that question and said exactly the opposite, that the -- the -- the important distinction is that the -- what the Court was saying in -- in Gustafson --

Justice Sotomayor: No, no, but Gustafson was dealing with whether -- what the prospectus had to contain. It wasn't dealing with this question of what the meaning of "by means of a prospectus" has to -- has to say.

Thomas G. Hungar: Well, with respect, Your Honor, it was. The Court in Gustafson said that "by means of a prospectus" limits Section 12(2) to public offerings. That's at page 577. And it said at page 571 liability under Section 12(2) cannot attach unless there is an obligation to distribute the prospectus. The obligation to distribute the prospectus is Official 1 limited to registered shares.

Justice Gorsuch: Mr. Hungar, I thought, though, that direct -- direct share sales required -- could only happen under at least the SEC rules with the registration statement.

Thomas G. Hungar: No, Your Honor. The -- I'm not sure I understand your --

Justice Gorsuch: There are no registration statements required to do direct sales at all?

Thomas G. Hungar: Well, I guess I'm not sure what you mean by "direct sales." So a public offering, which -- which, by definition, is an offering that's not exempt under Section 4, requires a registration.

Justice Gorsuch: I'm sorry, direct -- I'm talking about direct listings, okay, rather than sales.

Thomas G. Hungar: Oh, I'm sorry.

Justice Gorsuch: I'm sorry, but I thought the SEC required, before you had a direct listing, you had to file a registration statement.

Thomas G. Hungar: Well, the NYSE rule Official 1 requires a registration statement for a direct listing but only with respect to registered shares. It doesn't apply by definition to --

Justice Gorsuch: But there is still a requirement that you have a registration statement before you do a direct listing?

Thomas G. Hungar: Sure. Just like there's a requirement that you --

Justice Gorsuch: So there is an internal referent in Section 12 the way there isn't in Section 11. Judge Friendly in Barnes thought that was significant, and -- and, you know, you rely heavily on Judge Friendly, and it's a good source to rely on in Section 11. But, you know, what helps you with 11 hurts you on 12 at least in Judge Friendly's mind. And why -- why was the great old man wrong?

Thomas G. Hungar: Well, he was wrong because he -- he -- he -- he didn't anticipate the decision in Gustafson, which clarified the scope of Section 12(a)(2) liability. And Gustafson holds that -- as I said, that the -- that the scope of liability under Section 12(2) is limited to the obligation to distribute a prospectus. There is no obligation to Official 1 distribute a prospectus with respect to Section 4 exempt transactions --

Justice Kavanaugh: Can I --

Justice Barrett: Could --

Thomas G. Hungar: -- which is what we're talking about here.

Justice Alito: Were you required to issue a prospectus in order to do the direct listing?

Thomas G. Hungar: Yes, because the prospectus and registration requirement are -- are co-extensive.

Justice Alito: Right.

Justice Kavanaugh: The questions that Justice Gorsuch is asking and Justice Sotomayor about 12(2) raised for me a question, which is there's a lot of law out there about Section 11 and starting with Judge Friendly's opinion and -- and going all the way down. There's not a lot of law out there on the Section 12 issue, and I'm a bit concerned about deciding that issue without the SEC here, without more law out there, without knowing more about the Section 12 issue. So I'll just -- that's what I'm thinking. Official

Thomas G. Hungar: Your Honor, the Section 12 issue has not come up very much because of limitations on Section 12 in other respects, I think, but this Court's decision in Gustafson --

Justice Kagan: Could you explain that when you have a moment? I don't want to take you away from -- why hasn't the Section 12 issue come up?

Thomas G. Hungar: Okay.

Justice Kavanaugh: So take it now. (Laughter.)

Thomas G. Hungar: Okay. Yeah. I think -- so there have been some cases, and the -- and the cases since Gustafson --

Justice Kavanaugh: Don't forget mine.

Thomas G. Hungar: There have been some cases, and the cases since Gustafson have agreed with our position as -- as I understand it, but it's not a lot of cases, and -- and -- previous to Gustafson, I mean, Section 12 has the privity requirement, which in many jurisdictions imposes a substantial limitation. The district court in this case took a different approach. So that constrains the number of -- of cases that can be brought. Official 1 In the old days before this Court made clear that Section 10(b) has a scienter requirement and -- and made clear that there's a -- a comparable statute of limitations, 10(b) was a much more popular route than Sections 11 or 12. They just -- they just don't come up nearly as much as Section 10(b). 10(b) is the primary securities law civil cause of action, and that's -- the vast majority of the cases arise under that, which is another reason why the sky is not going to fall if this Court adheres to the course of the last 90 years in this case.

Justice Kavanaugh: Would a -- can you go back to mine then?

Thomas G. Hungar: I'm sorry, Your Honor, could you remind me of the question?

Justice Kavanaugh: I figured that was going to happen.

Justice Kagan: Sorry.

Justice Kavanaugh: That's what happens. Why not allow the lower courts to sort out the Section 12 issue before we give a definitive ruling on that? Official 1 Because I feel, in looking at this, on Section 11, there's a lot of law. The SEC's position's been out there for a long time. A lot of cases. We don't really have that on -- on Section 12. And I guess I'm just worried about making a mistake on Section 12 one way or another because we don't have the kind of thorough consideration we usually have before we give a definitive opinion on something.

Thomas G. Hungar: Well, the one thing that the district court and the court of appeals got right in our view is -- is the fact that "such security" should be construed the same in both provisions.

Justice Kavanaugh: So that's a great point for you, but as Justice Gorsuch points out, I think the reference is not -- there are differences between 11 and 12 over the exact same language, and maybe you ultimately win on that or maybe you don't, but that strikes me as a big issue for these direct listings and something that I'm not sure we're fully equipped at this moment to chime in on.

Thomas G. Hungar: I think the Court's decision in Gustafson answers these questions. Official 1 The -- the -- the -- the fundamental logic --

Justice Kavanaugh: I read it a lot, and I -- and I didn't come away with, like, this is the clear answer to the Section 12 issue.

Thomas G. Hungar: But -- but, Your Honor, the -- the --

Justice Kavanaugh: Maybe I -- maybe I should have.

Thomas G. Hungar: -- the fundamental logic of the Gustafson decision is that Section 12(2) is -- 12(a)(2) is limited to public offerings, that is, sales, public sales by the issuer, the controlling shareholders, underwriters, that -- that category. It doesn't extend to the other kinds of sales of securities which the Act describes --

Justice Kagan: If we put --

Thomas G. Hungar: -- which are exempt transactions.

Justice Kagan: -- if we put Gustafson aside for just a second, I mean, everything about Section 12 reads differently from Section 1. There's absolutely no reference to registration. The "such security" language does not refer back to -- to registration in any way. Official 1 It talks about prospectuses, but it also talks about -- oral communications, which suggests that it's broader than the registration context. And, you know, it has the specific exemption. So there's -- there's really nothing in Section 12 that makes it like Section 11.

Thomas G. Hungar: Well, I mean, putting aside Gustafson kind of ties one arm behind my back.

Justice Kagan: No, I mean, you know, because there's a -- there's a -- there's different views of exactly how far Gustafson went in what it says. And one view is Gustafson is just talking about what a prospective means, and it's not talking about this question of what it means to, you know, by means of a prospectus. So, anyway, the -- you know -- and there are contested views of what Gustafson means. We always look at the language of a statute. You know, it's just one of the things that we do. And the language of Section 12 is not the same in every relevant way.

Thomas G. Hungar: Well, that's certainly true, but there are multiple clues as to why Section 12 should be interpreted the way we Official 1 suggest. Number one, Congress said "such security," not "any security," which is obviously broader language like -- and it uses that same language in Section 17, which everyone acknowledges does apply to exempt transactions, as well as registered -- registered shares. The -- the -- the -- the logic of -- of Gustafson can't be reconciled with the position you're suggesting because Gustafson says that the -- that the liability imposed by Section 12 is co-extensive with the obligation to distribute a prospectus, which, by -- by virtue of Section (5)(b)(2), is coextensive with registered shares. Section (5)(b)(2) says that it's unlawful to disseminate shares in interstate commerce unless such security is accompanied by a prospectus, and "such security" there necessarily refers only to registered shares. My friends on the other side agree with that. "Such security" in Section 12 should be given the same meaning as a matter of -- of normal statutory construction as the same term used in the -- in the provision that it's Official 1 enforcing. And, again --

Justice Kavanaugh: Do we know what the SEC thinks about your Section 12 argument? Not that we would necessarily defer to it, but it's usually informative.

Thomas G. Hungar: I don't know that they have specifically taken a position on that question. Obviously, they have taken quite affirmatively and repeatedly a position on the Section 11 question, including in this Court in the Herman & MacLean case, where they told this Court explicitly that Section 11 provides a cause of action only for purchasers of registered shares. We cited that brief in our -- in our opening brief.

Justice Gorsuch: Mr. Hungar --

Thomas G. Hungar: And they -- they chose not to participate in this case, obviously concluding that the prior position they had taken before this Court was -- was sufficient.

Justice Gorsuch: Mr. Hungar, would -- I guess another way of asking the question my colleagues are getting at is, would the sky fall should we answer the Section 11 question in your Official 1 client's favor, vacate and remand, without addressing the Section 12 question?

Thomas G. Hungar: Well, certainly, it would fall in this case because the court of appeals answered that question and it answered it wrongly, and --

Justice Gorsuch: And we're going to vacate its judgment in light of your arguments -- supposing we were, in light of your arguments on Section 11, and maybe it should reconsider its Section 12 ruling in light of that.

Justice Kavanaugh: And just to add to that, the reason they did reach the conclusion on 12, I believe, is because they thought 11 and 12 should be read together, which all three --

Thomas G. Hungar: Yes.

Justice Kavanaugh: -- judges did, two against you and one in your favor, but if they know -- the Ninth Circuit knows that you're actually prevailing on Section 11, who knows what they'd do on Section 12.

Thomas G. Hungar: Yes, certainly, that would be better than where we stand right now. Obviously, we think -- Official

Justice Gorsuch: I would have thought. (Laughter.)

Thomas G. Hungar: We -- we obviously think that in light of the Court's decision in Gustafson, it -- it necessarily follows. I mean, again --

Justice Gorsuch: I know we've got the -- I've got --

Thomas G. Hungar: Yeah.

Justice Gorsuch: -- Gustafson, even if I can't pronounce it correctly. (Laughter.)

Justice Gorsuch: But -- but that -- that would be an available course to the Court in your mind?

Thomas G. Hungar: Yes. I mean, there are -- there are further textual reasons, even putting Gustafson aside, why our interpretation of Section 12 is correct. I mentioned the "any" versus "such," which, you know, a textual distinction. This Court normally gives meaning to those distinctions. It's also true in Section 3 of the Act Congress referred to classes of securities. Official 1 Respondent's interpretation of "such security" would essentially rewrite it to mean the whole class, and yet Section 3 of the Act makes clear that when Congress intended to refer to classes of securities, it said so. And it didn't say so in Section 12. It said "such security," which, again, refers -- is -- should be given a parallel construction to Section 5.

Justice Jackson: But can you help me to understand, though, going back to Justice Kagan's point, all of the differences that we see between 12 and 11? I mean, you're pointing to two areas that you think are similar, but it seems as though liability arises from the offering or selling of a security by means of oral communication, which doesn't have anything to do, I guess, at least on its face, with a prospectus. And so why would you have to have a registered share in order to give rise to that kind of liability?

Thomas G. Hungar: Well, this Court said in Gustafson that -- that oral communication has been construed to be -- given its -- that it appears together with the prospectus and in a -- Official 1 in a statute where the -- the structure makes clear that -- that, you know, what a prospectus is and when it's obligated to be distributed, that oral statement has to be understood as a reference to the prospectus, that something along the lines of the prospectus, referring to the contents of the prospectus, at the same time --

Justice Jackson: All right. So even in a situation where you have a prospectus, my understanding was that a prospectus is a part of a registration statement, but I suppose it could also be separate. Am I right about that? Like, it's a separate document.

Thomas G. Hungar: It's a separate document that is -- that is physically part of -- so the -- the registration statement contains a prospectus that doesn't have all the final information. The final prospectus is filed separately, but it's incorporated as part of the registration statement. So, yes, it's part of the registration statement, but you could hand someone a prospectus that doesn't have the full registration statement.

Justice Jackson: And in that Official 1 situation where you hand someone a prospectus and the prospectus has misleading or at least arguably misleading information, your view is that unless they did so in connection with a registered share, there's no liability?

Thomas G. Hungar: Yes, because that's what Gustafson holds. Gustafson says "by means of" means --

Justice Jackson: No, I understand.

Thomas G. Hungar: Okay.

Justice Jackson: But what do we do with the language in the statute, Section 12, that suggests that there is liability with respect to at least some exempt shares? I guess I can't -- if you were right that registration was sort of the core requirement of liability under 12(a), how do we have a 12(a) that applies on its face to some exemptions?

Thomas G. Hungar: Well, because -- because that's what Congress said. Congress specified the exempt shares to which Section 12 would apply. The reason it did that is because, otherwise, exempt shares or exempt transactions --

Justice Jackson: But, if you were Official 1 right -- if you were right about your thesis, if you were right that 12(a) really is all about registered shares, then we wouldn't see an exemption. I appreciate that Congress put it in here, but I think that undermines your argument about what 12(a) is actually doing.

Thomas G. Hungar: No, Your Honor, because, without that parenthetical that brings Section 3 exemptions back into the scope of liability, all the Section 3 classes of shares would be exempt from Section 12 liability. But Congress wanted Section 3 classes -- because, you understand, Section 3 exempts an entire class like bank securities or savings-and-loan securities. They are not subject to the registration requirement, to the Section 11 liability requirements. But Congress -- because those are often issued in public offerings, just like nonexempt shares, Congress wanted those public offerings of otherwise exempt shares to be covered by --

Justice Jackson: Is it direct lists --

Justice Barrett: But is it like --

Justice Jackson: Go ahead.

Justice Barrett: I -- I was just Official 1 going to ask you, I mean, the QP said whether plaintiffs must plead and prove that they bought registered shares -- sorry -- we're -- we're asking whether 12(a)(2) can only apply when there are registered shares. You're taking the position yes. But, by the same token, as this interchange with Justice Jackson is showing, 12(a)(2) can apply sometimes to shares that are exempt from registration, right?

Thomas G. Hungar: Yes, actually, three classes.

Justice Barrett: So why isn't that -- if we decided it very narrowly to avoid some of the problems Justice Kavanaugh is flagging, couldn't we just say no, the answer to that is no because it applies, as Justice Jackson was saying, on its face to some shares that are exempt from registration? So, no, we don't have to decide the limits?

Thomas G. Hungar: But this isn't a Section 3 case. The -- this is not a case involving a Section 3 exempt class.

Justice Barrett: So you would just read that exemption very narrowly, is kind of your answer to Justice Jackson? I'm sorry. Official 1 Read that language about Section 3 in saying which nonexempt shares are out of 12 -- you just read it very narrowly?

Thomas G. Hungar: I would read it according to the text. Congress said Section 12 imposes liability, which this Court said is -- is, generally speaking, contemporaneous with the prospectus requirement, except there's an exception. Congress made an exception to that limited scope. The exception is, oh, but we're bringing back into this the classes that are exempted by Section 3. So, in addition to most securities where the rule is only -- only if there's a prospectus obligation and, therefore, only if there's a registered share can you have Section 12 liability, in this limited category of cases, namely, Section 3 exempt classes, you can also have Section 12 liability even though there's no prospectus obligation. But that has nothing to do with this case because this case is not a Section 3 exempt class; it's a Section 4 exempt transactions case. And -- and -- Congress did not say, oh, and we also want Section 4 exempt transactions Official 1 to be covered by Section 12. And that makes perfect sense because Section 4 exempt transactions, by definition, are not public offerings. That's why they're exempt under Section 4. That's what the Gustafson Court said in explaining why Section 12 -- putting aside the Section 3 exception, Section 12 is limited to -- to public offerings, that is, non- -- non- -- offerings that are not exempted by Section 4.

Justice Kavanaugh: Can I ask you a question about Section 11? The former SEC officials' amicus brief suggests that they expected that in a direct listing, the registration statement would cover all the securities, all the shares, and they say that your position would essentially transform the '33 Act into an opt-out regime for direct listings and that we shouldn't do that, and that was contrary to the SEC's expectation when they tackled this issue. Do you just want to respond to that?

Thomas G. Hungar: Yes, Your Honor. That's clearly wrong for multiple reasons. In the first place, the SEC approved the registration in this state -- in this case and, indeed, Official 1 allowed it to take effect -- effect in advance of the normal time frame after reviewing it. The registration makes very clear at page 235 of the Ninth Circuit excerpted record that in addition to the 118 million registered shares being made available, there are already 165 million exempt shares free to trade under the SEC's own rule that -- that -- that addresses the Section 4 exemption. So it's perfectly clear the SEC knew there would be additional exempt shares that weren't being registered that could -- could -- that would trade and already were free to trade even before the direct listing. Beyond that, the SEC in 2020, in the -- in the order that's discussed in the briefs, where it approved the most recent version of the NYSE direct listing rule, a commentator raised concerns about Section 11 liability in the direct listing context. They said, gee, it's really hard to prove Section 11 liability in the direct listing context because it's hard to trace. And the SEC acknowledged that, said, well, yes, that's true, but there are lots of Official 1 circumstances in which tracing is different in the modern securities market, and that's not a reason not to approve the rule change.

Justice Kavanaugh: Could the SEC fix this, or could only Congress fix this? So I know the word "fix" is loaded, but you know what I mean, change this.

Thomas G. Hungar: Yes, the SEC could fix this, and if I may, I'd like to finish my answer to the previous question --

Justice Kavanaugh: Sure.

Thomas G. Hungar: -- because this is -- this is important. This conclusively demonstrates that the -- that the argument on the other side that direct listings were supposed to require exempt shares to be registered is just wrong. It would have made no sense for the SEC to be talking about the difficulty of tracing in the direct listing context if the SEC thought that exempt shares had to be registered in a direct listing. There would be no tracing problem if direct shares had to be registered in a direct listing. So, obviously, the SEC knew and understood and expected that exempt shares would not be Official 1 registered in a direct listing. The SEC and the -- and the amicus brief by Chairman Clayton of the SEC, who was the chairman at the time that that rule -- that that order was issued, and Professor Grundfest identifies a number of things the SEC could do to address this if they thought it was a problem. They have chosen not to do any of those things to date. They have the power to do it. And the law and business professors' brief also suggests that a recent regulatory change after this case, the creation of the consolidated audit trail, may facilitate tracing in the future. That remains to be litigated. But, again, the SEC has ample authority to address this if they think it's a problem.

Chief Justice Roberts: Thank -- thank you, Mr. Hungar. You indicated that the reason the SEC wasn't here, because they obviously adhered to the prior position that they had expressed. Do you have any evidence for that?

Thomas G. Hungar: No, Your Honor, but I -- we think that's a reasonable inference since, if they -- if they had wanted this Court to be Official 1 aware that they had a different position, I would think they would have told the Court.

Chief Justice Roberts: Justice Thomas?

Justice Thomas: One small question. How would you go about proving which shares are registered in a trade like this?

Thomas G. Hungar: Well, in a -- in a case like this, you would need --

Justice Thomas: Or a listing. I'm sorry.

Thomas G. Hungar: -- you would need to be able to trace the shares to the seller because the -- the identity of the seller and the -- and the basis for their sale determines whether they were registered or exempt. That is, if -- if the -- if a seller was a controlling shareholder who could only sell registered shares and -- and, therefore, they were -- they were selling the shares that were registered under the registration statement, that would satisfy. Now, again, it's very difficult. We -- we don't think that it can be done in this case. There's another pending state case where plaintiffs claim they can prove it, and that's Official 1 being litigated. But the fact that it's difficult doesn't justify reinterpreting the statute, particularly since the difficulties arose decades after the statute was enacted in the 1960s.

Justice Thomas: Thank you.

Chief Justice Roberts: Justice Alito? Justice Sotomayor?

Justice Sotomayor: You're asking us on Section 11 to reverse the judgment below. But Respondent is asking us to vacate and remand so that they can have an opportunity to prove tracing. You're basically arguing, I think, that they waived that. Isn't waiver always an issue that we let the court below decide?

Thomas G. Hungar: I don't know that you always let -- I mean, it's a question of forfeiture here not only in the courts below but also in this Court. They didn't raise in their brief in opposition any claim that, oh, by the way --

Justice Sotomayor: Well, I think they do when they say vacate and remand and let us do it. Official

Thomas G. Hungar: But -- but, Your Honor, normally, this Court doesn't reach issues and -- or take account of issues that were forfeited even in this Court. Again, we said in our petition --

Justice Sotomayor: But it wasn't forfeited --

Thomas G. Hungar: They're --

Justice Sotomayor: -- in this Court. They said give us a chance to prove we can.

Thomas G. Hungar: Under Rule 15, Your Honor, they forfeited it by not saying in their brief in opposition.

Justice Sotomayor: I'm not going to fight any longer with you on that. I was intrigued by some amici suggesting that we adopt a burden-shifting framework. As I understand that -- what's happening here is that these direct listing mechanisms are being -- are being touted and advanced in order to avoid having any tracing of direct listings of -- of public offerings. And so, if we were concerned about that, it did seem to me that the burden-shifting idea made some sense. You are purposely Official 1 avoiding a public offering to avoid having to sell only registered stock during a locked-up period, and so you're evading all Section 11 liability, even though you are registering, as the SEC requires, you're -- you're issuing a registration statement before you can issue any stock whatsoever. So I guess my question to you is, shouldn't we be leaving open that question on the burden shifting, and why shouldn't we?

Thomas G. Hungar: So several responses. The burden-shifting argument is one of the many issues that wasn't raised in the brief in opposition or below and shouldn't be addressed by the Court. Number two, burden-shifting --

Justice Sotomayor: I'll accept that, but should we leave it open?

Thomas G. Hungar: Well, I mean, I don't think the Court should address it at all because it's not presented in the case, but -- but, if the Court were to say something about it, there's no basis at all for burden-shifting in this statute.

Justice Sotomayor: Well, there's no Official 1 basis in the statute for tracing either --

Thomas G. Hungar: But the statute --

Justice Sotomayor: -- which hews judicially in construction -- from --

Thomas G. Hungar: Well, again, as I said, Section 12(a)(1) shows that Congress necessarily mandated tracing, but, beyond that, the -- the statute in -- in Sections 11 and 12, Congress very carefully addressed the question of burdens. It specifically assigned certain burdens that would normally have been on the plaintiff to the defendant in both of those provisions, such as the burden of proving a lack of negligence or due diligence. And so Congress has spoken very specifically to the question of burden allocations. And this Court should not essentially redo Congress's work for it and decide that additional burdens should be placed on the plaintiffs.

Chief Justice Roberts: Justice Kagan?

Justice Kagan: Mr. Hungar, I just wanted to go back to the Section 11, Section 12 distinction and give you a chance again to tell Official 1 me why I might be wrong about the textual differences between the two sections. And, again, I want to just put Gustafson off the stage because I think we might just have a difference as to how far it went and what it said. So I count four key differences between the two sections. First, there's no reference in Section 12 to registration; second, Section 12 clearly covers some unregistered shares because it ropes in Section 3 securities; third, Section 12 refers to sales not only by means of a prospectus but also by means of oral communication, which would suggest that we're outside the world of registration; and, fourth, Section 12 creates liabilities for sellers who had absolutely nothing to do with the registration statement, so the class of people who -- who might be liable is very different and is not connected to the registration statement. And what that suggests to me is that the two provisions are targeting two very different things, that one is targeting dishonesty in creating a registration statement and the other is targeting dishonesty in certain Official 1 kinds of sales, period, with or without a registration statement. So why am I wrong?

Thomas G. Hungar: So Section 12 does refer to -- to the registration requirement not in so many words, but, by definition, when you're talking about a prospectus, a prospectus is directly tied to the registration statement requirement. Section 5 -- Section 5(b)(2) of the Act specifically says that the obligation to distribute a prospectus arises only with respect to --

Justice Kagan: I think that was my number three. It says prospectus or oral communications. So we're clearly dealing in a world here in which it might be a prospectus or it might be something else.

Thomas G. Hungar: Well, I'm trying to take them one at a time, Your Honor. The -- the argument that Section 12 doesn't refer to a prospectus -- to a -- to the registration requirement is incorrect because liability is predicated at least with respect to the first part of the liability provision on the Official 1 prospectus requirement. And, again, the prospectus requirement is limited to and applies only with respect to a security -- to any security with respect to which a registration statement has been filed. That is the definition -- "such security" in Section 5(b) refers back to any security with respect to which a registration statement has been filed. And -- and -- and such security is the only security as to which there's an obligation to distribute a prospectus. And this Court said in Gustafson that's what prospectus means in Section 12. It means the prospectus that's referred to in Section 5(b), which is to say any -- the prospectus that has to be distributed for any security with respect to a registration statement has been filed. So there is a clear and unambiguous direct link between the prospectus in Section 12 and the registration statement in Section 5. And only registered securities are subject to that requirement. This Court said that in so many words in Gustafson. Official 1 So, with respect to oral communication, again, what this Court said in Gustafson, what the courts of appeals have said under noscitur a sociis or whatever that canon of construction is, that oral communication can't mean every oral communication because, given the prospectus is limited to the prospectus -- referenced in Section 5 and applies only to registered shares, it would dramatically expand the -- the scope of liability in a bizarre way if the -- the only misrepresentations in a written -- in a writing that were actionable were in the -- in the prospectus applicable only to the registered shares, but then, like, oral communications opened the door to all sorts of suits based on oral communications. So this Court in Gustafson indicated and the courts of appeals have consistently held "oral communication" means an oral communication relating to the prospectus, not some un-moored type of oral communication. So, again, if it has to relate to the prospectus, that means it's tied to the registration requirement. You asked about -- you -- you made a Official 1 Section 3 point. All I can say, as I've said before, when Congress creates a liability provision that on its face would not apply because -- to exemptions because they're exemptions and then it says, oh, but this particular category of exemptions we want to bring back in to the scope of liability, it is reasonable to infer that they didn't bring in the other category of exemptions, the Section 4 exemptions, that they didn't include in that parenthetical as -- as securities that are going to be covered by Section 12, even though they're normally exempt. And so the inclusion of one category of exemptions and the exclusion of another category of exemptions strongly supports the conclusion that the second category of exemptions remains exempt. You had one other point.

Chief Justice Roberts: Justice Gorsuch? Justice Kavanaugh? Justice Barrett? Justice Jackson?

Justice Jackson: Can I just ask you Official 1 quickly, I've heard you say a couple of times that there's an obligation to distribute a prospectus or register, and I assume you mean a legal obligation. And your brief does focus heavily on that requirement, but I guess I'm wondering about voluntary registration. So can a company voluntarily register exempt shares?

Thomas G. Hungar: I mean, I suppose so. Well, again, the exemption -- the Section 4 exemptions are transactional. So you could have a share that is exempt in the hands of its holder, that is, they would be legally entitled to sell it, but they might choose to -- to have it registered and ask the company to register it along with, say, a registered offering of other shares.

Justice Jackson: And isn't that what's happening in the direct listing context to some degree?

Thomas G. Hungar: No, Your Honor.

Justice Jackson: No? Why?

Thomas G. Hungar: Because they're not registered. They're not -- and the shareholders aren't asking -- I mean -- well, sorry. To be Official 1 clear, some shareholders did register their shares. Those are registered shares. They had to register those shares in order to sell them because they were subject to restrictions. Other shareholders --

Justice Jackson: But they started off being exempt. I thought the direct listing, the whole pool started off being exempt, and then we had registration as part of it, and some of those shares were designated as being registered as part of the direct listing.

Thomas G. Hungar: Not quite, Your Honor.

Justice Jackson: Okay.

Thomas G. Hungar: Again -- and it's confusing because the Section 4 exemptions are transactional. So there were share -- before the direct listing, there were certain large shareholders or off -- affiliates of the corporation who owned shares, they had obtained those shares from the corporation in an exempt offering -- I mean an exempt transaction for that transfer from the corporation to that initial category of, you know, officers, directors, major shareholders.

Justice Jackson: All right. So those Official 1 were exempt originally?

Thomas G. Hungar: Well, but they weren't exempt in the sense that there were restrictions on their ability to sell them. Because they're -- because they're in that category of officers, directors, affiliates of the corporation, they could not sell those shares publicly without registering them.

Justice Jackson: Okay.

Thomas G. Hungar: And, therefore, in the direct listing, they registered those shares in order to sell them. But other people who were not affiliates, low-level employees, say, who may have gotten a few shares as part of a employee stock option program or something, they are not subject to the same restrictions because they're not affiliates of the company. And under the SEC's rules determining who is exempt and who isn't exempt, they were entitled to sell their shares publicly even before the direct listing, and they didn't --

Justice Jackson: Without registering them?

Thomas G. Hungar: Correct, without registering. Official

Justice Jackson: Okay.

Thomas G. Hungar: And they remained entitled to do that after the direct listing.

Justice Jackson: So the ones who registered them, do you concede that Section 11 liability attached at that point?

Thomas G. Hungar: I mean, those are registered shares, and, therefore, Section 11 applies to those shares, yes.

Justice Jackson: Thank you.

Chief Justice Roberts: Thank you, counsel.

Thomas G. Hungar: Thank you.

Chief Justice Roberts: Mr. Russell. ORAL ARGUMENT OF KEVIN K. RUSSELL ON BEHALF OF THE RESPONDENT

Kevin K. Russell: Mr. Chief Justice, and may it please the Court: Everyone agrees that "such security" in Section 11 refers in some ways to the registration statement challenged as misleading. The question here is the precise nature of that relationship. Petitioners say "such security" refers exclusively to what they call registered shares. Official 1 But the statute doesn't use that term or provide a definition for it, and neither do Petitioners. That might seem unnecessary because one would think that a registered share is one specified in the registration statement, but registration statements do not specify individual shares, as exemplified by the examples of Petitioner Butterfield's shares that we discuss in our brief. Instead, what registration statements do is they do not act at the individual -- at the level of individual shares. Instead, they act at the level of a public offering of securities, not shares, that is, the planned introduction of a group of fungible shares to the market at a particular time. The function of the registration statement is to provide the market the information it needs to value all of those fungible shares in that public offering. And the function of Section 11 is to provide investors confidence that they can rely on the integrity of that market price, even though some of those shares could have been sold in some other transaction without a registration Official 1 statement. Accordingly, the better view is that "such security" in Section 11 refers to all of the shares in the public offering for which the registration statement was a prerequisite. Section 12 also uses the term "such security," but unlike in Section 11, it has a direct grammatical referent, the security sold by means of a misleading prospectus. By its terms, that provision applies to a security, not a registered security. And the prospectus here is exactly the kind of document Gustafson held to be a prospectus within the meaning of Section 12. Congress expressly mentioned shares exempt under Section 3 because it had to, because Section 3 says Section 3 exempt shares are not subject to any of the provisions of the statute, including Section 12. Section 4 does not operate in that way. It exempts only from the specific registration requirement. As a consequence, there is no need for Congress to mention that. I welcome the Court's questions.

Justice Thomas: Would you comment on Official 1 the tracing requirement? Mr. Hungar said -- I believe he said it was always there. And I'd like to see your -- have -- hear your reaction to that.

Kevin K. Russell: Sure. What he is referring to is a -- a series of cases, starting with Barnes, in which the Court said not that you have to share -- not that you have to show that you purchased a registered share, because all the shares in -- in Barnes and all the cases that followed were registered shares. The question was, registered under which registration statement? Were they registered under the -- were they part of the offering made possible by the allegedly misleading registration statement, or had they been issued previously, which is what happened in Barnes, under a registration statement that was not misleading? Those courts do not address the question here. They ask which registration, which registration statement, which registered offering, and sometimes they use that term. They say you have to trace your shares to the registered offering. None of them say you have Official 1 to show that you purchased a registered share because it didn't matter in any of those cases. And, indeed, the only case that they cite to that even addresses this question of the distinction between exempt and registered shares is the Fifth Circuit's 2005 decision in Krim. That is not the kind of circuit consensus that Congress could have ratified. And, instead, the proper understanding of those cases is they are addressing a different question. And if anything, they are consistent with our view that the focus of Section 11 is on the registered offering, because everybody who purchases in that offering is going to have their shares valued based on that registration statement, whether the share could have been sold in another kind of transaction or not without a registration statement.

Justice Thomas: The -- and, finally, should Sections 11 and 12 rise or fall together?

Kevin K. Russell: No, they definitely do not. They have very different language. The textual ambiguity that arises in Section 11 comes from the fact that "such security" doesn't Official 1 have a grammatical referent. It does in Section 12. And it unambiguously refers to "a security," not "a registered security." My friend's reliance on Gustafson is entirely misplaced. The Court wasn't considering anything like this question there. It was asking the relatively straightforward question of what is a prospectus. And it held that a prospectus is this formal kind of document that get filed -- that gets filed with a registration statement, not, you know, provisions of a contract in a private -- in a private transaction. Of course, this is not a private transaction. This is Slack's public -- initial public offering. They issued billions of shares to the public for the first time -- or they sold billions of dollars' worth of shares to the public for the first time here. It is a core thing that the '33 Act is designed to regulate. But they claim to have found a way to get out of Section -- Section 11 liability not only in this special context about direct listings but even in the more typical and much more consequential context of regular IPOs, Official 1 because you cannot -- I don't think this Court can write a decision adopting their interpretation without opening the door to issuers allowing some exceptions to their lockup rules that would result in the immediate introduction of exempt shares at the same time as the IPO shares.

Justice Kagan: What -- what is your understanding, Mr. Russell, of why that hasn't happened before now? Because I would think, if this is an unsettled question, somebody would have tested exactly that. You -- you know, just in a regular IPO, you also include some unregistered shares. But we haven't seen that. Why not?

Kevin K. Russell: You haven't seen that, and -- and the important thing is we haven't seen any cases saying you can do that either. You know, Petitioners insist that this has been settled for a long time, that they absolutely have the right to -- to engage in this kind of stratagem. But every time they say that, they don't cite any cases. They --

Justice Kagan: I mean, do you know of any issuers that have done that? Official

Kevin K. Russell: Certainly, I am aware the SEC in that 2020 order notes in a footnote that not every lockup period has -- you know, that some lockup periods have exemptions. I'm not sure -- I'm not aware, to answer your question, of anybody raising this argument in the post-lockup period context. I suppose --

Justice Kagan: But you think that there would be no distinction between the two in terms of the law that's being argued about here?

Kevin K. Russell: I don't see how you could. Their position is that as soon as exempt shares enter the market, you have to trace and show that the shares that you identified are registered shares and not exempt shares. And that -- there's no difference between the post-IPO lockup period and a direct listing in that respect. And they insist, and the Fifth Circuit in Krim has held, that that's impossible to do, that as soon as it enters the share, that share's getting to legal, including in the share depository and -- and -- and -- and in the books, the -- the street listings and brokers, and at the very least, even if it's not Official 1 completely impossible to conduct that kind of tracing, it is surely exceedingly burdensome and --

Justice Kavanaugh: When -- keep going. Sorry.

Kevin K. Russell: Exceedingly burdensome not only for the parties but also for the courts and the juries who are going to have to determine the registration status of perhaps millions of individual shares of stocks and on the third parties who will be subject to discovery, the -- the brokers, the share depositories, in order to engage in this -- this exercise.

Justice Kavanaugh: One of the things that's said on the other side and in the amicus briefs, I think, is that you have a problem, going the other direction from the status quo, that in a typical IPO, the issuer's liability ends with the end of the lockup period. But your theory, if we were to accept it, in Section 11 cases, would allow liability to go on even after the lockup period?

Kevin K. Russell: So two things about that. I think there are things that they can do Official 1 to -- to cut the liability off, but they don't cite any cases for the proposition that they -- they get to cut the liability off either. And they certainly don't cite any cases that --

Justice Kavanaugh: But that would be -- just the premise, that would be a big change from the status quo --

Kevin K. Russell: No.

Justice Kavanaugh: -- in IPOs, right?

Kevin K. Russell: They have not established that that is the general rule in IPOs --

Justice Kavanaugh: Okay.

Kevin K. Russell: -- that you get to cut off that liability in that way. It may be the practice in some lower courts. It is not. There's no circuit consensus about that, and, certainly, this Court hasn't held. But what they --

Justice Barrett: Do you see a lot of suits that we're not seeing, kind of to Justice Kavanaugh's point?

Kevin K. Russell: The -- the cases where people are including the post-lockup IPOs --

Justice Barrett: Yeah. Official

Kevin K. Russell: -- shares in them?

Justice Barrett: Yeah.

Kevin K. Russell: I don't know. I mean, nobody has cited this Court cases one way or the other about that body of cases. I will say what issuers --

Justice Barrett: Maybe --

Kevin K. Russell: -- can do --

Justice Barrett: -- it's because people think they can't bring them. I mean, it seems kind of -- to Justice Kavanaugh's point, the status quo is that after the lockup period ends, these suits don't go forward under Section 11.

Kevin K. Russell: But -- well, two things about that. One thing, I think, even on our view of the statute, that an issuer can do is withdraw the registration statement at the end of the lockup period. Slack did something similar in this case. After 90 days, they withdrew the registration statement. And so that provides them that kind of protection. The difference between that solution and what they're proposing is that if you adopt their view, they don't only cut off liability Official 1 after the end of the lockup period; they can, simply by having a limited exception to the lockup period on day one, eliminate all liability altogether, including for all the shares in the IPO, because as soon as they let a single share, exempt share, onto the market, which they can easily do, it doesn't harm their interest of the underwriters because they don't have to let enough in that's going to affect the share price, as soon as they let in even a small number of shares, we've got this intermingling that they say requires tracing that they say is impossible to do, and the Fifth Circuit has agreed. You know, they've been a little bit careful about how hard they think tracing is in this Court, but you can rest assured that if this Court issues a decision in their favor, they're going to be arguing to the lower courts that you need to adopt the position in Krim, and -- and then we'll be at the end of it. And there are only --

Justice Sotomayor: So let me ask you, if we find -- if we find tracing is required, then we should do what they want, reverse, Official 1 because you can't prove tracing?

Kevin K. Russell: No. I -- I think you should leave it to the lower court. It is true -- you know, we pled in our complaint that the shares were traceable. But we did say during the briefing that if what that means is we have to show the exemption status of every share that my client purchased, we couldn't do that. And I think you can just leave it up to the lower courts to say whether that precludes us from being able to take advantage of additional briefing --

Justice Sotomayor: Because I was seeing the numbers. You could prove that a certain percentage of your stock had to be registered, correct?

Kevin K. Russell: I certainly think we can meet the Iqbal and Twombly standard --

Justice Sotomayor: Right.

Kevin K. Russell: -- by showing that it is not only plausible but virtually certain that my client purchased some registered shares, and I think that's all you have to do to establish standing. Everything else is a damages question. But -- Official

Justice Jackson: Can I ask about your Section 11 argument? Because I thought I understood you to say in your brief that "such securities" includes shares that the registration statement allows to be sold but not if the registration statement merely informs the share's valuation. Is that your position? And how do you draw that line, or where does it come from?

Kevin K. Russell: No, I -- I don't -- I'm -- I apologize if we gave that impression.

Justice Jackson: Okay.

Kevin K. Russell: Our position is that, look, Section 11 is agnostic to why you have a registration statement.

Justice Jackson: Okay.

Kevin K. Russell: The point of Section 11 is, once there's a registration statement, all the shares in the public -- in the public offering that required that registration statement in order to go forward are going to be valued on the basis of that registration statement. And it is completely understandable that Congress would have then said that Official 1 everybody who buys shares that are based on a price that is inflated or deflated because of a misstatement should have a remedy.

Justice Jackson: So does it matter -- my understanding in this particular case is that the direct listing itself registered certain shares or said that some subset of all the shares that were going on the market would be registered and others weren't. So what do we do with that fact in light of your argument?

Kevin K. Russell: I think that one of the benefits of our argument is it gets away from this question of having to look at a registration statement and say which shares are registered and which aren't. In our view, so long as the shares were part of a public offering for which a registration statement was required, that section only --

Justice Jackson: No, I understand that, but -- but don't you have to -- don't you have to persuade us that that's what Congress --

Kevin K. Russell: Yes.

Justice Jackson: -- intended with Official 1 respect to Section 11? And so why is it that you can have a world in which the registration statement speaks to certain shares as registered and certain as not and, under your view, still implicate, all of them, implicate Section 11?

Kevin K. Russell: So two responses to that. One is I think a premise of your question is that registration statements identify specifically identifiable shares, and that's not the case. So, if you look at the Slack registration statement here and look at the shares of CEO Butterfield, they say he has 41 million shares and he's registering 11 million of them. There's no way you can tell from that registration statement which are the 11 million and which are the 30 million that aren't registered. Yet they would have my client have to prove, even though we know for sure, even if he paid $40 directly to Mr. Butterfield and got a share, he could not tell whether that share was registered under this registration statement or not, and that's because registration Official 1 statements pave the way for public offerings. They do not register individual shares.

Justice Gorsuch: Counsel --

Chief Justice Roberts: Well, he can't -- the reason he can't is because the statute says "such security." I mean, that's the big hurdle for you to get over. I -- I don't think the -- unless your argument is, and I'm not dismissing it in any sense, but it's simply a practicality argument, you say that Congress must have intended everybody to be able to sue and that we should not be too punctilious about looking at "such" in "such security."

Kevin K. Russell: No, we acknowledge "such security" requires a relationship with the registration statement. My point I was just making is that they have this idea of what a registered share is, which, in order to work, requires registration statements to identify specific individual shares, and they don't. You know, if my client knew that he had a particular share, if he got a paper certificate, he could not look at the registration statement and tell whether that's a Official 1 registered share or not because the registration statement does not say which of Mr. Butterfield's 40 million shares are registered and which aren't, and that's a problem. The -- the -- the -- the broader point about "such security," though, is that, you know, their premise is that Section 11 is enforcing the obligations of Section 5 and 4, and that's simply incorrect. Section 4 and 5 describe the obligations of share owners and describe the conditions under which they can sell their shares lawfully. Section 11 doesn't say anything about lawful shares and it doesn't say anything about the duties of sellers. It instead addresses the obligations of people who write registration statements and says to them that you've got to be accurate. And then the question simply becomes, what is the scope of the remedy provided when that doesn't happen? And we don't think that you can just transport a set of distinctions that were put into the statute to govern the obligations of sellers and when they can sell to Official 1 that context. It makes perfect sense that Congress would have understood that a registration statement speaks to all of the -- the valuation of all of the shares in the registering -- in the registered offering for which it would file, and it's going to injure everybody who purchases in that public offering.

Justice Gorsuch: You -- you spoke a -- a few moments ago and in the briefs too a bit about this traceability requirement or Section 11 is a standing question, and I -- I just want to clear that up because I -- I -- I for one don't quite see it that way. It seems to me like it's part of the cause of action under Section 11, not -- it doesn't go to the question of constitutional injury and -- in fact. And so, yes, all you'd need to do is plead facts suggesting that you can trace consistent with the -- the Twiqbal standard, as my friends like to call it. (Laughter.)

Justice Gorsuch: And -- and then you're off to the races and it really just Official 1 becomes a matter of damages, as I think you also alluded to. Is -- is that right?

Kevin K. Russell: That's right. I don't think anybody is saying that it's a matter of Article III standing. They use the phrase "statutory standing."

Justice Gorsuch: Statutory standing.

Kevin K. Russell: But I don't know that's any different than, you know, part of a cause of action.

Justice Gorsuch: Cause of action.

Kevin K. Russell: The critical thing, though, is that it is not part of the cause of action that in order to get into the door and to proceed with the case, you've got to be able to show every --

Justice Gorsuch: No, I --

Kevin K. Russell: -- the -- the registration status of every share.

Justice Gorsuch: -- I -- I understand your position on that. But, if we were to rule against you on what Section 11 means, it still would enable you to plead, and we're only at the 12(b)(6) stage here, that there are traceable shares -- Official

Kevin K. Russell: Yes.

Justice Gorsuch: -- and -- and plausible facts suggesting some traceable shares. That's all that would be required.

Kevin K. Russell: That is correct, and that's why, you know, we think, if you adopt our interpretation of Section 11, you should disavow any suggestion that they are entitled to -- to affirmance of their motion to dismiss at this stage because we surely satisfied Twiqbal or however you word it.

Justice Kavanaugh: Can't we leave that to the court of appeals to decide whether it was forfeited or not?

Kevin K. Russell: Certainly. So I'm addressing, I think, two different questions.

Justice Kavanaugh: Yes.

Kevin K. Russell: There -- there is a forfeiture argument, and I think you leave that to the court of appeals.

Justice Kavanaugh: Yeah.

Kevin K. Russell: There is a separate argument about why, you know, maybe you would affirm because we can't -- because, under your interpretation -- Official

Justice Kavanaugh: Yes.

Kevin K. Russell: -- that requires registration, we don't meet Iqbal and Twombly, and I think you should reject that.

Justice Kavanaugh: More -- more broadly, I think the suggestion on the other side and, certainly, the amicus briefs is that this is a new thing, direct listings, and to take your position here, we would have to depart on Section 11 from a lot of law, starting with Judge Friendly, that's been around for a long time. And rather than doing that -- this is their suggestion -- we should leave it to the SEC and/or Congress rather than ourselves, kind of departing from that longstanding body of law. So that's kind of an institutional argument of sorts that they're suggesting leave it to the SEC, and I just want to make sure you can respond to that.

Kevin K. Russell: Thank you. I appreciate that. We -- we strongly dispute the premise. The body of law that they are describing does not hold that plaintiffs have to show that every Official 1 share they purchased was registered or not. The body of law that they are pointing to simply says you have to show that you purchased under the registered offering that was governed by the registration statement that you said was misleading as opposed to issued under some registration statement a few years earlier that could have been entirely accurate. None of those cases decide the question presented here. Sometimes they use language about registered shares, but it doesn't matter. It didn't matter in that case because they weren't drawing a distinction between registered shares and exempt shares that were issued as part of a registered offering because it simply didn't matter in that case. If I could turn again to Section 12 for a moment, you know, I do think that the plain language of the statute just directly answers the questions here. This is not at all surprising that Congress would say that if you use a misleading prospectus to sell a security, it doesn't matter whether you're using it to sell a registered security or a -- an exempt security. It causes the same harm. Official 1 And, of course, in a case where you have an intermingling of exempt and what they call registered securities, anybody who is offering those securities for sale is going to make use of that prospectus because they have no way of knowing if they are offering and -- and -- and advertising and marketing registered shares or not, and in all likelihood, the people are going to buy some of both. But the harm that Section 11 or Section 12, I apologize, is directed against surely arises whenever that prospectus is used to -- to market securities in that way. And I don't understand any reason why our -- my friends think that the parenthetical that represent -- that references Section 3 was necessary in order to make clear that exempt shares are a security. Clearly, an exempt security is a security.

Justice Kavanaugh: If you were to lose on Section 11 -- I'm not saying you're going to, but if you did -- the discussion we had earlier about leaving then Section 12 to the court of appeals -- because I think you raised good arguments on Section 12. The other side Official 1 raised good arguments about Gustafson. We don't have the SEC. We don't have a lot of case law. I'm, speaking only for myself, a bit concerned about saying too much on Section 12 without more confidence about what we're doing.

Kevin K. Russell: You know, we are the Respondents. We didn't want you to take either question -- (Laughter.)

Kevin K. Russell: -- you know, and we're happy for you to leave the status quo the way it is. I do think it is an entirely straightforward textual question.

Justice Kavanaugh: Well --

Kevin K. Russell: And I do think, if you're concerned about -- I apologize.

Justice Kavanaugh: -- the -- it -- it's not, but anyway, keep going.

Kevin K. Russell: All right. But I would say that, you know, if you're concerned about getting this right without the benefit of the views of -- of the SEC, you should consider DIG-ing the entire case, because I don't think, you know, that the concerns that you have about the -- the correctness of the parties' Official 1 interpretations of Section 12, I think, arise with respect to Section 11 as well, because they are -- again, the entire premise of their argument is that the world is divided into exempt shares and registered shares and Section 11 applies and -- and exempt shares are exempt from essentially everything in the statute. Section 3 does do that. Section 3 identifies a body of shares that are exempt from nearly everything except Section 12 in the statute. Congress didn't do that for Section 4. Section 4 simply, as I said before, addresses the -- when certain shares can be sold and in certain kinds of transactions. It is not an overall status that it bestows on individual shares and exempts them from everything in the statute.

Justice Kavanaugh: It's odd that the SEC is not here. Mr. Hungar -- given how they come in in our other cases, Mr. Hungar suggests the reasonable inference on Section 11 is that they -- they've stated their position before. But I just want you to give us your response to that. Official

Kevin K. Russell: Okay. I have no idea why they're not here. I will -- but I can say with great confidence that the position they expressed before is not a position that directly translates to this case. They are simply doing -- they expressed the position that Barnes adopted, which is that you have to trace your shares that you purchased to the registered offering that was governed by the misleading registration statement, not to some other offering that may have had a perfectly fine registration statement.

Justice Sotomayor: I have read some commentators suggesting that the SE -- the -- the SG is having trouble with this case and doesn't know what to do.

Kevin K. Russell: I --

Justice Sotomayor: Do you have any indication of that?

Kevin K. Russell: I -- I -- I'm sorry. I just don't know. They haven't --

Chief Justice Roberts: May not be the only one. (Laughter.)

Kevin K. Russell: I will say, you know, Official 1 there is this question of -- of, you know, can Congress or the SEC fix this? Certainly, I think there would be something to fix because, again, the practical consequence of adopting Petitioners' position, I think, is inevitably going to open the door to this -- their strategem of letting in a few exempt shares, even in traditional IPOs, and arguing that, therefore, you have to trace. And that's generally going to be impossible. And so --

Justice Sotomayor: In Footnote 7 of your brief, you acknowledged that there is an argument that the NYSE rule requires that all securities sold in a direct listing be covered by the registration statement and presumably by the prospectus as well. But you acknowledge you waived that argument. Is --

Kevin K. Russell: That's correct. We did not raise that --

Justice Sotomayor: Why isn't that a foundational question or a critical question with respect to whether we impose a tracing requirement on you in this direct listing context?

Kevin K. Russell: I do think it is a Official 1 critical question because it'll mean that if you were to issue a decision in Respondent's favor in this case, it may not matter in the direct listing context. And the only effect of the decision then would be with respect to this much more common, much more consequential, and under-briefed issue about what happens after the expiration of a lockup period in a traditional IPO. You know, it is unfortunate that we did not raise this below and -- or before, and we're not asking the Court to rule on it now. We recognize that that would be unfair. But we do want the Court to be aware of this question and not to say anything in -- in its opinion --

Justice Sotomayor: Might -- might be --

Kevin K. Russell: -- prejudging that.

Justice Sotomayor: -- a ground to DIG, no?

Kevin K. Russell: I'm sorry?

Justice Sotomayor: Might be another ground to DIG?

Kevin K. Russell: It might be. I -- I can certainly understand why the -- the Court would Official 1 do that in your -- I'm in a poor position to suggest that you do that because we didn't raise this in the brief in opposition. So we -- we do think at the very least, though, that the Court should leave that -- that open and that should be something that can get percolated, and that may end up resolving the actual question in the context of direct listings. And, again, I do think it is a very serious consequence of their position that you're going to create a pathway for evasion of Section 11 in the context of traditional IPOs. Their response isn't that that's wrong; it's that that's right and we've always had that right. That is wrong. Their other response is don't worry about it because there's always Section 10(b). You know, that, I think, is an inadequate response, including because the whole reason Congress enacted Section 11 was because it thought the common law cause of action for fraud that existed before the Great Depression was inadequate. It's not something that Section 10 provides --

Justice Sotomayor: Counsel, I think you've answered my question. I -- Official

Kevin K. Russell: I apologize. But it -- I'm sorry.

Chief Justice Roberts: Anything further? Justice Thomas? Justice Alito?

Justice Kagan: I wanted to make sure, Mr. Russell, I understood your textual argument, because it does seem to me like you have a hard row to hoe here. Granted, "such security" doesn't have an antecedent, but why shouldn't we read it Mr. Hungar's way?

Kevin K. Russell: Two reasons. One, Mr. Hungar's way requires you to be able to identify specific shares as registered by the registration statement. As the Butterfield example shows, you cannot do that. And --

Justice Kagan: How -- how about when -- when -- when it talks about the registration statement becoming effective and then it switches over to Section 6 and it says a registration statement shall be deemed effective only as to the securities specified therein? Why aren't we talking about those securities?

Kevin K. Russell: Because the word Official 1 "security" there is not "share," and it is not referring to individual shares, including because registration statements don't specify individual shares. If you look at Section 7, which then lists what goes into the registration statement, it refers to Schedule A. Schedule A doesn't say that you have to identify specific shares. The closest it comes is in subparagraph 11, which says you have to identify the amount of capital stock, an aggregate question, not individual shares. If you look at the extensive SEC regulations about what goes into a registration statement, it also doesn't require you to identify individual shares. And as I said before and as the Butterfield example shows, this registration statement doesn't identify individual shares. But I will say, even if you thought that it made sense to talk about registered shares and you could identify them and you knew what they were, it is nonetheless the case that Section 11, I think, simply doesn't follow that line of distinction. That's a line of distinction about the lawfulness of sales. It Official 1 is about the obligations of sellers. Section 11 is about the obligations of people who write -- who write registration statements. And it is not at all strange, when we know that every share in a registered offering is going to be valued or misvalued based on what's said in that registration statement -- it's not at all unusual to think that Congress would provide a remedy to everyone who is foreseeably injured.

Justice Kagan: Thank you.

Chief Justice Roberts: Justice Gorsuch? Justice Kavanaugh? Justice Barrett? Justice Jackson? Thank you, counsel.

Kevin K. Russell: Thank you.

Chief Justice Roberts: Rebuttal, Mr. Hungar. REBUTTAL ARGUMENT OF THOMAS G. HUNGAR ON BEHALF OF THE PETITIONERS

Thomas G. Hungar: Thank you, Your Honor. Just a few brief points. First, some factual corrections. Slack did not withdraw its registration Official 1 statement. It merely withdrew it with respect to unsold shares. So the registration statement remained in effect. And under Respondent's interpretation, there would be no end to the liability potential for -- for companies that issue registration statements for the full three-year period of the -- the statute of repose, which would dramatically change the consensus. Mr. Butterfield, another affiliate to the company, could not sell unregistered shares. So, if they registered only some of their shares, only those could be sold. That's because it would be illegal to sell unregistered shares because of the exemption that only applies for affiliates only applies to the shares that are -- or, rather, there is no exemption for them to sell. They'd have to be registered in order to sell. So the -- only the registered shares, so there's no difficulty determining whether he sold registered shares. Barnes did involve exempt shares as well as registered shares that were already in the market. The case makes that clear. Counsel says that there's no consensus Official 1 on Section 11. That's simply incorrect. Every court of appeals that had -- had addressed the question, eight courts of appeals, said that what "such security" means in Section 11 is shares registered under the registration statement that's being challenged. And that means, as everyone has understood for the past many decades, that in the case of an IPO, once there are exempt shares on the market, the plaintiff must trace in order to bring a Section 11 claim. And as I said at the beginning, Respondent does not cite a single case to the contrary in the 90-year history of the Act. So the idea that somehow the norm is that people can bring suits in those circumstances is patently incorrect. The SEC has -- counsel suggests that the SEC's position is not clear and does not address the question at issue here. That's simply incorrect. Here's what the SEC told this Court in the Herman & MacLean case: A plaintiff may seek relief under Section 11 only with respect to securities covered by the registration statement. There's no doubt, and, in fact, the Official 1 Court -- the SEC actually went on to say, even though there could be outstanding securities of the same class, that there would still not be liability even if people had relied on the registration statement with respect to those other shares. So the SEC's position is perfectly clear. Respondent says that this was a public offering of the exempt shares. That's simply not true. If you look at Gustafson, Gustafson defines what a public offering is. A public offering is -- an offering is by -- by an issuer or a controlling shareholder. That's what Gustafson says. And that's exactly the point that Gustafson is making, distinguishing -- distinguishing between the public offerings that are covered by Section 12, public sales, public offerings that require a registration statement and that -- that are by issuers, controlling shareholders, underwriters and the like, as distinct from the exempt shares that are not public offerings because they're exempt under Section 4, which carves out that different class of offering -- of offerings for different treatment, including under Section 12. Official 1 If the Court has no further questions, I thank the Court, and we ask that the judgment be reversed.

Chief Justice Roberts: Thank you, counsel. Counsel. The case is submitted. (Whereupon, at 12:55 p.m., the case was submitted.)