Securities Fraud — Materiality to Investors, Not to SEC

The defendant in a criminal securities fraud prosecution, United States v. Berger, 2007 U.S. App. LEXIS 1013 (9th Cir. Jan. 18, 2007), was charged with making false statements in SEC filings. Relying on the reasoning of Kungys v. United States, 485 U.S. 759 (1988), an INS case, the defendant argued that the government was obliged to prove -- not that the filings were material to a reasonable investor -- but rather that they were material to the SEC. The Ninth Circuit rejected that argument, holding that "[t]he The purpose of the 1934 Act was to benefit and protect investors, with proper agency decisionmaking as a secondary concern." The Court relied on the argument proffered by the SEC, which observed that filings false filings that relate to specific agency decisions are criminalized by a separate statute, 18 U.S.C. § 1001, and that a person making a false filing can be charged under both (1) section 10(b), the 1934 Act provision relating to the purchase or sale of securities, and (2) § 1001, the general statute criminalizing false statements made to government agencies.

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