Slack Technologies, LLC v. Pirani

P R E L I M I N A R Y P R I N T
Volume 598 U. S. Part 2
Pages 759–770
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 1, 2023
REBECCA A. WOMELDORF
reporter of decisions
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759 OCTOBER
TERM, 2022
Syllabus
SLACK TECHNOLOGIES, LLC, fka SLACK
TECHNOLOGIES,
INC., et al. v. PIRANI
certiorari to the united states court of appeals for
the ninth circuit
No. 22–200. Argued April 17, 2023—Decided June 1, 2023
This case arises from a public offering of securities governed by the Secu-
rities Act of 1933, and the issue presented is what a public buyer must
allege to state a claim under § 11 of the Act. The 1933 Act requires a
company to register the securities it intends to offer to the public with
the Secur ities and Exchange Commissi on. See, e. g., 15 U. S. C.
§§ 77b(a)(8), 77e; see also § 77d. As part of that process, a company
must prepare a registration statement that includes detailed informa-
tion about the frm's business and fnancial health so prospective buyers
may fairly assess whether to invest. See, e. g., §§ 77f, 77g, 77aa. The
law imposes strict liability on issuing companies when their registration
statements contain material misstatements or misleading omissions.
In this case, Slack Technologies—a technology company that offers a
platform for instant messaging—conducted a direct listing to sell its
shares to the public on the New York Stock Exchange in 2019. As part
of that process, Slack fled a registration statement for a specifed num-
ber of registered shares it intended to offer in its direct listing. Under
the direct listing process, holders of preexisting unregistered shares in
Slack were free to sell them to the public right away. Slack's direct
listing offered for purchase 118 million registered shares and 165 million
unregistered shares. Fiyyaz Pirani bought 30,000 Slack shares on the
day Slack went public, and later bought 220,000 additional shares.
When the stock price dropped, Mr. Pirani fled a class-action lawsuit
against Slack alleging, as relevant here, that Slack had violated § 11 of
the 1933 Act by fling a materially misleading registration statement.
Slack moved to dismiss, arguing that the complaint failed to state a
claim under § 11 because Mr. Pirani had not alleged that he purchased
shares traceable to the allegedly misleading registration statement,
leaving open the possibility that he purchased shares not registered by
means of the registration statement. The district court denied the mo-
tion to dismiss but certifed its ruling for interlocutory appeal. The
Ninth Circuit accepted the appeal and a divided panel affrmed.
Held: Section 11 of the 1933 Act requires a plaintiff to plead and prove
that he purchased securities registered under a materially misleading
registration statement. The relevant language of § 11(a) authorizes an

760 SLA
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Syllabus
individual to sue for a material misstatement or omission in a registra-
ti
on statement when the individual has acquired “such security.” Slack
argues the term “such security” refers to a security issued pursuant to
the allegedly misleading registration statement; Mr. Pirani says that
the term may encompass a security not registered under an allegedly
misleading registration statement. While the word “such” usually re-
fers to something that has already been described, there is no clear
referent in § 11(a) defning what “such security” means. As a result,
the Court must ascertain the statute's critical referent “from the context
or circumstances.”
Context provides several clues. First, the statute imposes liability
for false statements or misleading omissions in “the registration state-
ment.” § 77k (emphasis added). The statute uses the defnite article
to reference the particular registration statement alleged to be mislead-
ing, and in this way seems to suggest the plaintiff must “acquir[e] such
security” under that document's terms. Ibid. In addition, the statute
repeatedly uses the word “such” to narrow the law's focus—for example,
referring to “such part” of the registration statement that contains a
misstatement or misleading omission—suggesting that when it comes to
“such security,” the law speaks to a security registered under the partic-
ular registration statement alleged to contain a falsehood or misleading
omission. Section 6 of the statute indicates that a registration state-
ment is “effective” for “only . . . the securities specifed therein,” which
is also hard to square with Mr. Pirani's reading. Damages caps in the
statute also make less sense with Mr. Pirani's account of the statute.
Collectively, these contextual clues persuade the Court that Slack's
reading of the law is the better one. While direct listings like the one
here are new, the Court's conclusion is not. The majority of courts have
for years held that § 11(a) liability extends only to shares that are trace-
able to an allegedly defective registration.
Resisting this conclusion, Mr. Pirani argues that the Court should
read the phrase “such security” to include not only securities registered
under a defective registration statement but also other securities that
bear some sort of minimal relationship to a defective registration state-
ment. Mr. Pirani contends that but for the existence of Slack's registra-
tion statement for the registered shares, its unregistered shares would
not have been eligible for sale to the public. But Mr. Pirani does not
explain what the limits of his rule would be, how the Court might derive
them from § 11, or how any of this can be squared with the various
contextual clues identifed which suggest that liability runs with regis-
tered shares alone. Mr. Pirani argues that if Congress wanted liability
under § 11(a) to attach only to securities issued pursuant to a particular
registration statement, it could have borrowed language from § 5 to
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Syllabus
achieve that result. On its own terms, that argument also shows that
Congress
could have written § 11(a) to explain more clearly that liability
attaches to “any security” or “any security” bearing some specifed rela-
tionship to a registration statement. Finally, Mr. Pirani argues that
adopting a broader reading of “such security” would expand liability
for falsehoods and misleading omissions and thus better accomplish the
purpose of the 1933 Act. The Court cannot endorse that sort of reason-
ing. Nor is Mr. Pirani's account of the law's purpose altogether obvious;
an inference in the opposite direction is at least equally plausible. In
any event, the Court's function is to discern and apply existing law.
The Court concludes that the better reading of § 11 requires a plaintiff
to plead and prove that he purchased shares traceable to the allegedly
defective registration statement, and remands for the Ninth Circuit to
consider that question in the frst instance. Pp. 766–770.
13 F. 4th 940, vacated and remanded.
Gorsuch, J., delivered the opinion for a unanimous Court.
Tho mas G. Hungar arg ued the cause for petiti oners.
With him on the briefs were Jacob T. Spencer, Michael D.
Celio, Matthew S. Kahn, Michael J. Kahn, Daniel R. Adler,
and Matt Aiden Getz.
Kevin K. Russell argued the cause for respondent. With
him on the brief were Thomas C. Goldstein, Erica Oleszczuk
Evans, Lawrence P. Eagel, and Marion C. Passmore.*
*Briefs of amici curiae urging reversal were fled for the Cato Institute
by Mark C. Fleming, Timothy J. Perla, and Robert A. Donoghue; for the
Chamber of Commerce of the United States of America et al. by Melissa
Arbus Sherry, Andrew B. Clubok, Susan E. Engel, Brent T. Murphy,
Kevin Carroll, Erica Klenicki, and Michael A. Tilghman II; for the
Washington Legal Foundation by James N. Kramer, Cory L. Andrews,
and John M. Masslon II; and for Hon. Jay Clayton et al. by Boris Feldman
and Doru Gavril.
Briefs of amici curiae urging affrmance were fled for Former SEC
Offcials by Carolyn E. Shapiro, John Paul Schnapper-Casteras, and Dan-
iel P. Chiplock; for Institutional Investors by Mr. Schnapper-Casteras and
Lauren Amy Ormsbee; and for Nokota Capital Management, LP, by
Sheila A. Sadighi, Lawrence M. Rolnick, Richard A. Bodnar, and Bran-
don Fierro.
Briefs of amici curiae were fled for Evidence and Civil Procedure
Scholars by Jeremy A. Lieberman, Emma Gilmore, Marc I. Gross, and
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Opinion of the Court
Justice Gorsuch delivered the opinion of the Court.
Th
is case concerns the meaning of one provision of the
federal securities laws. For many years, lower federal
courts have held that liability under § 11 of the Securities
Act of 1933 attaches only when a buyer can trace the shares
he has purchased to a false or misleading registration state-
ment. Recently, the Ninth Circuit parted ways with these
decisions, holding that a plaintiff may sometimes recover
under § 11 even when the shares he owns are not traceable
to a defective registration statement. The question we face
is which of these approaches best conforms to the statute's
terms.
I
Together, the Securities Act of 1933, 48 Stat. 74, 15 U. S. C.
§ 77a et seq., and the Securities Exchange Act of 1934, 48
Stat. 881, 15 U. S. C. § 78a et seq., form the backbone of
American securities law. The frst is “ `narrower' ” and fo-
cused “ `primarily' ” on the regulation of new offerings.
Gustafson v. Alloyd Co., 513 U. S. 561, 572 (1995) (quoting
Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 752
(1975)). Generally speaking, the 1933 Act requires a com-
pany to register the securities it intends to offer to the public
with the Securities and Exchange Commission (SEC). See,
e. g., 15 U. S. C. §§ 77b(a)(8), 77e; see also § 77d. As part of
that process, a company must prepare a registration state-
ment that includes detailed information about the frm's busi-
ness and fnancial health so prospective buyers may fairly
assess whether to invest. See, e. g., §§ 77f, 77g, 77aa. The
law imposes strict liability on issuing companies when their
registration statements contain material misstatements or
misleading omissions. § 77k; see also Herman & MacLean
v. Huddleston, 459 U. S. 375, 380 (1983).
Stephen A. Saltzburg, pro se; and for Law and Business Professors by
Laura Posner, Carol V. Gilden, and Ira A. Schochet.
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Opinion of the Court
The 1934 Act sweeps more broadly. Among other things,
it
requires publicly traded companies to provide ongoing dis-
closures and regulates trading on secondary markets. See,
e. g., §§ 78m, 78o; T. Hazen, Federal Securities Law 99–102
(4th ed. 2022) (Hazen). This law's main liability provision
sweeps more broadly too. It allows suits in connection with
the purchase or sale of “any security,” whether registered or
not. § 78j(b); see also 17 CFR § 240.10b–5 (2022); Herman &
MacLean, 459 U. S., at 382. But to prevail under this provi-
sion, a plaintiff must prove that any material misleading
statement or omission was made “with scienter, i. e., with
intent to deceive, manipulate, or defraud.” Id., at 382.
This case arises from a public offering governed by the
1933 Act. Typically, when a company goes public it issues
new shares pursuant to a registration statement. That reg-
istration statement is fled with the SEC and made available
to the public. Investment banks underwrite the offering,
usually by buying these new registered shares at a negoti-
ated price and then selling them to investors at a higher
price. In this way, underwriters often carry the risk of loss
should they fail to sell the shares at a proft. See 1 L. Loss,
J. Seligman, & T. Paredes, Securities Regulation 738–748
(6th ed. 2019); Hazen 32–33.
Of course, a company's early investors and employees may
own preexisting shares. Often, too, these shares are not
subject to registration requirements. See, e. g., 15 U. S. C.
§ 77d(a)(2) (exempting, among other things, transactions “not
involving any public offering ”); 17 CFR § 230.144(a)(3)(i)
(recognizing as exempt certain securities “acquired directly
. . . from the issuer . . . in a transaction or chain of transac-
tions not involving any public offering ”); Hazen 60–61. To
prevent the stock price from falling once public trading be-
gins, underwriters may require insiders to consent to a
“lockup agreement”—a commitment to hold their unregis-
tered shares for a period of time before selling them on the
new public market. See 1 J. Bartlett, Equity Finance: Ven-
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Opinion of the Court
ture Capital, Buyouts, Restructurings and Reorganizations
§
14.8, p. 333 (2d ed. 1995).
Initial public offerings (IPOs) are an effective way of rais-
ing capital, but they also have drawbacks. Among other
things, they can involve signifcant transaction costs. Nor
is raising capital the only reason frms might wish to go pub-
lic; some may simply wish to afford their shareholders
(whether investors, employees, or others) the convenience of
being able to sell their existing shares on a public exchange.
See 73 Fed. Reg. 54442 (2008). Several years ago, a number
of companies approached the New York Stock Exchange
(NYSE) about the possibility of selling shares publicly on
that exchange w ithout an IPO. Ib i d. Ulti mately, the
NYSE proposed rules to facilitate and regulate these “direct
listings,” which the SEC approved with modifcations. 83
Fed. Reg. 5650 (2018).
Slack is a technology company that offers a platform for
instant messaging. It conducted a direct listing on the
NYSE in 2019. Pirani v. Slack Technologies, Inc., 13 F. 4th
940, 944, 947 (CA9 2021). As part of that process, Slack fled
a registration statement for a specifed number of registered
shares it intended to offer in its direct listing. Pirani v.
Slack Technologies, Inc., 445 F. Supp. 3d 367, 373 (ND Cal.
2020). But because Slack employed a direct listing rather
than an IPO, there was no underwriter and no lockup agree-
ment. 13 F. 4th, at 951 (Miller, J., dissenting). Accordingly,
holders of preexisting unregistered shares were free to sell
them to the public right away. See ibid. All told, Slack's
direct listing offered for purchase 118 million registered
shares and 165 million unregistered shares.
Fiyyaz Pirani bought 30,000 Slack shares on the day Slack
went public. He bought 220,000 additional shares over the
next few months. When the stock price later dropped,
Mr. Pirani fled a class-action lawsuit against Slack. In that
suit, he alleged that Slack had violated §§ 11 and 12 of the
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765
Opinion of the Court
1933 Act by fling a materially misleading registration state-
ment.
Ibid.
Slack moved to dismiss the complaint for failure to state a
claim. Sections 11 and 12, Slack argued, authorize suit only
for those who hold shares issued pursuant to a false or mis-
leading registration statement. And this feature of the law,
the company said, was dispositive in this case because
Mr. Pirani had not alleged that he purchased shares trace-
able to the allegedly misleading registration statement. For
all anyone could tell, he may have purchased unregistered
shares unconnected to the registration statement and its rep-
resentations about the frm's business and fnancial health.
Of course, Slack would go on to acknowledge that the 1934
Act allows investors to recover for fraud in the sale of
unregistered shares upon proof of scienter. But, the com-
pany emphasized, Mr. Pirani had not sought to sue under
that law.
Ultimately, the district court denied the motion to dismiss
but cer ti fied its r u l i ng for i nter locutory appea l. 445
F. Supp. 3d, at 381, 384–385. The Ninth Circuit accepted
the appeal and a divided panel affrmed. 13 F. 4th, at 945,
950. In dissent, Judge Miller argued that §§ 11 and 12 of the
1933 Act require a plaintiff to plead and prove that he pur-
chased securities registered under a materially misleading
registration statement, something Mr. Pirani had not done.
Id., at 951–952. Judge Miller pointed out that a long line of
lower court cases have interpreted § 11 as applying only to
shares purchased pursuant to a registration statement. Id.,
at 952. Because the Ninth Circuit's decision created a split
of authority in the courts of appeals about § 11's scope, we
granted certiorari. 598 U. S. ––– (2022).
1
1
The parties have litigated this case on the premise that Slack was not
required to register all of the shares sold in its direct listing. For the
frst time before this Court, Mr. Pirani challenges that premise, suggesting
that it was incumbent on Slack to register all the securities sold in its
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Opinion of the Court
II
W
e begin with the relevant language of § 11(a) of the 1933
Act. It provides:
“In case any part of the registration statement, when
such part became effective, contained an untrue state-
ment of a material fact or omitted to state a material
fact required to be stated therein or necessary to make
the statements therein not misleading, any person ac-
quiring such security (unless it is proved that at the time
of such acquisition he knew of such untruth or omission)
may, either at law or in equity, in any court of compe-
tent jurisdiction, sue [certain enumerated parties].” 15
U. S. C. § 77k(a).
The statute authorizes an individual to sue for a material
misstatement or omission in a registration statement when
he has acquired “such security.” The question we face is
what this means. Does the term “such security” refer to a
security issued pursuant to the allegedly misleading regis-
tration statement? Or can the term also sometimes encom-
pass a security that was not issued pursuant to the allegedly
misleading registration statement? Slack advances the frst
interpretation; Mr. Pirani defends the second.
Immediately, we face a bit of a challenge. The word
“such” usually refers to something that has already been “de-
scribed” or that is “implied or intelligible from the context
or circumstances.” Concise Oxford Dictionary of Current
English 1218 (1931); see also Webster's New International
Dictionary 2518 (2d ed. 1954). But there is no clear referent
in § 11(a) telling us what “such security” means. As a result,
we must ascertain the statute's critical referent “from the
context or circumstances.”
As it turns out, context provides several clues. For one
thing, the statute imposes liability for false statements or
direct listings on the NYSE. Brief for Respondent 11–12, n. 7. As he
acknowledges, however, this issue is not properly presented for decision,
ibid., and so we do not pass upon it.
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Opinion of the Court
misleading omissions in “the registration statement.” § 77k
(
emphasis added). Not just a registration statement or any
registration statement. The statute uses the defnite article
to reference the particular registration statement alleged to
be misleading, and in this way seems to suggest the plaintiff
must “acquir[e] such security” under that document's terms.
Ibid.
For another thing, the statute repeatedly uses the word
“such” to narrow the law's focus. The statute directs us to
“such part” of the registration statement that contains a mis-
statement or misleading omission. It speaks of “such acqui-
sition” when a person has acquired securities pursuant to the
registration statement. And it points to “such untruth or
omission” found in the registration statement. Each time,
the law trains our view on particular things or statements.
All of which suggests that, when it comes to “such security,”
the law speaks to a security registered under the particular
registration statement alleged to contain a falsehood or mis-
leading omission.
Other provisions in the 1933 Act follow suit. Under § 5,
for example, “[u]nless a registration statement is in effect as
to a security,” it is unlawful “to sell such security.” § 77e(a).
Here, the term “such security” clearly refers to shares sub-
ject to registration. Meanwhile, § 6 provides that a “regis-
tration statement shall be deemed effective only as to the
securities specifed therein as proposed to be offered.”
§ 77f(a). It's an instruction that would seem hard to square
with Mr. Pirani's broader reading of § 11(a)—after all, adopt-
ing that reading would give the registration statement effect
(in the sense of creating liability) for securities that are not
“specifed” in the registration statement “as proposed to be
offered.”
Beyond these clues lies still another. Section 11(e) caps
damages against an underwriter in a § 11 suit to the “total
price at which the securities underwritten by him and dis-
tributed to the public were offered to the public.” § 77k(e).
This provision thus ties the maximum available recovery to
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Opinion of the Court
the value of the registered shares alone. It's another fea-
ture
that makes little sense on Mr. Pirani's account, for if
§ 11(a) liability extended beyond registered shares presum-
ably available damages would too. See Barnes v. Osofsky,
373 F. 2d 269, 272 (CA2 1967); Brief for SEC as Amicus Cu-
riae in Barnes v. Osofsky, No. 30867 etc. (CA2), pp. 4–5.
Collectively, these contextua l clues persuade us that
Slack's reading of the law is the better one. Nor is anything
we say here particularly novel. For while direct listings are
new, the question how far § 11(a) liability extends is not.
More than half a century ago, Judge Friendly addressed the
question in an opinion for the Second Circuit in Barnes and
concluded that “the narrower reading ” we adopt today is the
more “natural” one. 373 F. 2d, at 271, 273. Since Barnes,
every court of appeals to consider the issue has reached the
same conclusion: To bring a claim under § 11, the securities
held by the plaintiff must be traceable to the particular reg-
istration statement alleged to be false or misleading.
2
Until
this decision, even the Ninth Circuit seemed to take the same
view. Hertzberg v. Dignity Partners, Inc., 191 F. 3d 1076,
1080, and n. 4 (1999).
Resisting this conclusion, Mr. Pirani argues that we should
read the phrase “such security” to include not only securities
traceable to a defective registration statement. We should
also read the phrase to include other securities that bear
some sort of minimal relationship to a defective registration
statement. And, he argues, a reading like that would allow
his case to proceed because, but for the existence of Slack's
registration statement for the registered shares, its unregis-
tered shares would not have been eligible for sale to the
2
See, e. g., In re Ariad Pharmaceuticals, Inc. Securities Litigation, 842
F. 3d 744, 755–756 (CA1 2016); Rosenzweig v. Azurix Corp., 332 F. 3d 854,
873 (CA5 2003); Lee v. Ernst & Young, LLP, 294 F. 3d 969, 976–977 (CA8
2002); Joseph v. Wiles, 223 F. 3d 1155, 1159 (CA10 2000), abrogated on
other grounds, California Public Employees' Retirement System v. ANZ
Securities, Inc., 582 U. S. 497 (2017); APA Excelsior III L. P. v. Premiere
Technologies, Inc., 476 F. 3d 1261, 1271 (CA11 2007).
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769
Opinion of the Court
public. Brief for Respondent 22–23. Beyond assuring us
that
the rule he proposes would save his case, however,
Mr. Pirani does not offer much more. He does not explain
what the limits of his rule would be, how we might derive
them from § 11, or how any of this can be squared with the
various contextual clues we have encountered suggesting
that liability runs with registered shares alone.
Perhaps the closest Mr. Pirani comes to answering these
questions comes when he directs us to § 5. If Congress
wanted liability under § 11(a) to attach only to securities is-
sued pursuant to a particular registration statement, he ob-
serves, it could have simply borrowed similar language from
§ 5. That provision, he stresses, speaks of “any security
with respect to which a registration statement has been
fled.” § 77e(b)(1). But even taken on its own terms, this
argument does not prove much. If Mr. Pirani's example
shows that Congress could have written § 11(a) to explain
more clearly that liability attaches only to securities issued
pursuant to a particular registration statement, it also shows
that Congress could have written § 11(a) to explain more
clearly that liability attaches to “any security” or “any secu-
rity” bearing some specifed relationship to a registration
statement. That Congress could have been clearer, no one
disputes. But none of this proves it adopted anything like
the rule Mr. Pirani proposes.
Finally, Mr. Pirani argues from policy and purpose.
Adopting a broader reading of “such security” would, he
says, expand liability for falsehoods and misleading omissions
and thus better accomplish the purpose of the 1933 Act. We
cannot endorse this line of reasoning. This Court does not
“presume . . . that any result consistent with [one party's]
account of the statute's overarching goal must be the law.”
Henson v. Santander Consumer USA Inc., 582 U. S. 79, 89
(2017). Nor, for that matter, is Mr. Pirani's account of the
law's purpose altogether obvious. As we have seen, the
1933 Act is “limited in scope.” Herman & MacLean, 459
U. S., at 382. Its main liability provision imposes strict lia-
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770 SLA
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Opinion of the Court
bility on issuers for material falsehoods or misleading omis-
si
ons in the registration statement. Ibid. Meanwhile, the
1934 Act requires ongoing disclosures for publicly traded
companies and its main liability provision allows suits involv-
ing any sale of a security but only on proof of scienter.
Ibid.; Hazen 99–100. Given this design, it seems equally
possible that Congress sought a balanced liability regime
that allows a narrow class of claims to proceed on lesser
proof but requires a higher standard of proof to sustain a
broader set of claims.
III
Naturally, Congress remains free to revise the securities
laws at any time, whether to address the rise of direct list-
ings or any other development. Our only function lies in
discerning and applying the law as we fnd it. And because
we think the better reading of the particular provision be-
fore us requires a plaintiff to plead and prove that he pur-
chased shares traceable to the allegedly defective registra-
tion statement, we vacate the Ninth Circuit's judgment
holding otherwise. Whether Mr. Pirani's pleadings can sat-
isfy § 11(a) as properly construed, we leave for that court to
decide in the frst instance on remand.
3
It is so ordered.
3
As we noted at the outset, the parties do not just spar over the best
interpretation of § 11 and its application to this case. They do the same
when it comes to § 12. See Part I, supra. But we have no need to reach
the merits of that particular dispute. The Ninth Circuit said that its deci-
sion to permit Mr. Pirani's § 12 claim to proceed “follow[ed] from” its analy-
sis of his § 11 claim. 13 F. 4th 940, 949 (2021). And because we fnd that
court's § 11 analysis fawed, we think the best course is to vacate its judg-
ment with respect to Mr. Pirani's § 12 claim as well for reconsideration in
the light of our holding today about the meaning of § 11. In doing so, we
express no views about the proper interpretation of § 12 or its application
to this case. Nor do we endorse the Ninth Circuit's apparent belief that
§ 11 and § 12 necessarily travel together, but instead caution that the two
provisions contain distinct language that warrants careful consideration.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 761, line 9, “alternate” is deleted