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SEC Rule 10b-5 2019

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THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of Securities Exchange Commission Rule 10b-5.

[Courts] often review an agency's interpretation of a statute it is charged with implementing under the framework of Chevron. See Mylan Labs., Inc. v. Thompson, 389 F.3d 1272, 1279 (D.C. Cir. 2004) (citing Chevron, 467 U.S. 837, 104 S.Ct. 2778). Under that framework, we first determine whether Congress "has directly spoken to the precise question at issue," in which case we "give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If the statute is "silent or ambiguous," we consider "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.

But not all agency interpretations fall within Chevron's framework. The Supreme Court has clarified that "[d]eference in accordance with Chevron . . . is warranted only 'when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.'" Gonzales v. Oregon, 546 U.S. 243, 255-56, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (quoting United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). In addition, we generally do not apply Chevron deference when the statute in question is administered by multiple agencies. See, e.g., DeNaples v. Office of Comptroller of Currency, 706 F.3d 481, 487 (D.C. Cir. 2013); Proffitt v. FDIC, 200 F.3d 855, 860 (D.C. Cir. 2000).

An agency interpretation that falls outside Chevron "is 'entitled to respect' only to the extent it has the 'power to persuade.'" Gonzales, 546 U.S. at 256, 126 S.Ct. 904 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); see also Mead, 533 U.S. at 234-35, 121 S.Ct. 2164.

Kaufman v. Nielsen, 896 F. 3d 475 (DC Cir. 2018)




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