On September 10, 2013, the Ninth Circuit Court of Appeals addressed the issue of scienter in an
unregistered securities distribution in SEC v. CMKM Diamonds, Inc. An SEC
Enforcement Action charged CMKM, and other participants including securities
lawyers with various violations of the securities laws including dumping
billions of shares of unregistered stock into the public markets.
The SEC Action charged CMKM’s transfer agent and its owner and obtained a summary
judgment motion against them. The defendants appealed arguing that the district
court erred when it determined that Section 5 is a strict liability statute. The
Court reversed the lower court’s decision because it determined that no triable
issue of fact existed as to whether the defendants could be held
liable.
The Court determined that Section 5 requires a person must be both a “necessary participant” and “substantial factor” in the unregistered
securities sale. The Court stated that despite that the transfer agent and its
owner, “issued large quantities of shares without a restrictive legend after
receiving two attorney opinion letters is insufficient Authentic Eddie George Jersey , in and of itself, to establish that Global and Bagley were substantial factors as a matter of law. Based upon this
evidence, a reasonable jury could conclude that Global and Bagley were not
substantial participants in the CMKM scheme.”
In a footnote the Court noted “Because Section 5 is a strict liability statute, it appears that the
district court erred in determining that good faith reliance on counsel could
preclude liability under the statute.” In other words, regardless of how many
legal opinions a shareholder obtains they can still be charged with violations
of the SEC’s registration provisions. Author Resource:- For further information legal opinion about this article, please rule
144 lawyer contact Brenda rule 144 Hamilton Authentic Steve McNair Jersey , Securities Brenda Hamilton attorney Attorney at 101 Plaza Real S, lawyer Suite 202 N, Boca lawyer attorney Raton
Florida,
at 561-416-8956 or visit http:www.securitieslawyer101.
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