Amicus Curiae Brief — Robinhood Markets, Inc., et al., Petitioners v. Vinod Sodha, et al.

No. 25-944

IN THE

Supreme Court of the United States

_______________

ROBINHOOD MARKETS, INC., ET AL.,

Petitioners,

v.

VINOD SODHA, ET AL.,

Respondents.

_______________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

_______________

BRIEF OF AMICUS CURIAE

PROFESSOR JOSEPH A. GRUNDFEST

IN SUPPORT OF PETITIONERS

_______________

BRIAN A. RICHMAN

JAIME R. BARRIOS

GIBSON, DUNN &

CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

JONATHAN C. BOND

Counsel of Record

BRANDON C. WOLF

ANDREW Y. EBRAHEM

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

JBond@gibsondunn.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE.............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................3

ARGUMENT ...............................................................4

I.

SECTION 11 DOES NOT CREATE A DUTY

TO UPDATE ......................................................4

II. ITEM 303 CREATES NO DUTY TO

UPDATE .........................................................11

III. THIS COURT’S REVIEW IS FURTHER

WARRANTED BECAUSE OF THE

COMMISSION’S PROPOSED MOVE TO

SEMIANNUAL REPORTING ..............................15

IV. THIS CASE PRESENTS THE COURT WITH

AN OPPORTUNITY TO PROVIDE CLARITY

ON DISCLOSURE OBLIGATIONS THAT

FACEBOOK AND NVIDIA ULTIMATELY

DID NOT ........................................................16

CONCLUSION ..........................................................18

ii

TABLE OF AUTHORITIES

Cases ............................................................... Page(s)

In re AT&T/DirecTV Now Securities

Litigation,

480 F. Supp. 3d 507 (S.D.N.Y. 2020) ................... 14

Backman v. Polaroid Corp.,

910 F.2d 10 (1st Cir. 1990) .................................... 7

In re Burlington Coat Factory Securities

Litigation,

114 F.3d 1410 (3d Cir. 1997) ................................. 6

California v. Texas,

593 U.S. 659 (2021) .............................................. 13

Decker v. Northwest Environmental

Defense Center,

568 U.S. 597 (2013) .............................................. 13

E. Ohman J:Or Fonder AB v. NVIDIA

Corp.,

81 F.4th 918 (9th Cir. 2023) ................................ 17

In re Facebook, Inc. Securities

Litigation,

87 F.4th 934 (9th Cir. 2023) ................................ 17

Facebook, Inc. v. Amalgamated Bank,

No. 23-980 (U.S. Dec. 26, 2024) ........................... 16

FEC v. Cruz,

596 U.S. 289 (2022) .............................................. 13

Ford Motor Credit Co. v. Milhollin,

444 U.S. 555 (1980) .............................................. 13

Gallagher v. Abbott Laboratories,

269 F.3d 806 (7th Cir. 2001) .................................. 6

iii

Cases (continued) ......................................... Page(s)

Kapps v. Torch Offshore, Inc.,

379 F.3d 207 (5th Cir. 2004) ................................ 14

Macquarie Infrastructure Corp. v. Moab

Partners, L. P.,

601 U.S. 257 (2024) .................................. 5, 7, 9, 11

Manhattan General Equipment Co. v.

Commissioner of Internal Revenue,

297 U.S. 129 (1936) .............................................. 13

NVIDIA Corp. v. E. Ohman J:Or Fonder

AB,

No. 23-970 (U.S. Jan. 13, 2025) ........................... 16

Oxford Asset Management, Ltd. v.

Jaharis,

297 F.3d 1182 (11th Cir. 2002) ............................ 14

Schoenhaut v. American Sensors, Inc.,

986 F. Supp. 785 (S.D.N.Y. 1997) ........................ 14

Shaw v. Digital Equipment Corp.,

82 F.3d 1194 (1st Cir. 1996) .................................. 3

Smith v. City of Jackson,

544 U.S. 228 (2005) ............................................ 8, 9

Stadnick v. Vivint Solar, Inc.,

861 F.3d 31 (2d Cir. 2017) ..................................... 3

Stransky v. Cummins Engine Co.,

51 F.3d 1329 (7th Cir. 1995) .............................. 6, 7

United States v. LaBonte,

520 U.S. 751 (1997) .............................................. 13

United States v. Vogel Fertilizer Co.,

455 U.S. 16 (1982) ................................................ 13

iv

Cases (continued) ......................................... Page(s)

Willard v. UP Fintech Holding Ltd.,

527 F. Supp. 3d 609 (S.D.N.Y. 2021) ................... 14

Zucker v. Quasha,

891 F. Supp. 1010 (D.N.J. 1995),

aff’d, 82 F.3d 408 (3d Cir. 1996) .......................... 14

Statutes

15 U.S.C.

§ 77k ............................................................... 5, 6, 8

§ 77q ....................................................................... 8

Regulations

17 C.F.R.

§ 229.106............................................................... 10

§ 229.232............................................................... 10

§ 229.239............................................................... 10

§ 229.240............................................................... 10

§ 229.249............................................................... 10

§ 229.303......................................................... 11, 12

§ 240.10b-5 ............................................................. 7

§ 240.13a-13 ......................................................... 10

§ 240.13a-14 ......................................................... 10

§ 249.308a............................................................. 10

§ 249.310............................................................... 10

v

Other Authorities......................................... Page(s)

Milton Freeman, Conference on the Codification of the Federal Securities

Laws, 22 Bus. Law. 793 (1967) .............................. 8

Joseph A. Grundfest, Disimplying Private Rights of Action under the Federal Securities Laws: The Commission’s Authority, 107 Harv. L. Rev.

(1994) ................................................................. 7, 8

3 Thomas L. Hazen, The Law of Securities Regulation § 12.16 (9th ed. 2025) ................... 7

Soyoung Ho, SEC to Revisit Semiannual

Reporting After Trump’s Call for

Change, Thomson Reuters (Sept. 18,

2025) ..................................................................... 15

Matthew Kaplan et al., The End of

Quarterly Reporting in the United

States?, Harv. L. Sch. F. on Corp.

Governance (Oct. 5, 2025). ................................. 15

Management’s Discussion and Analysis,

Selected Financial Data, and

Supplementary Financial

Information, 86 Fed. Reg. 2080 (Jan.

11, 2021) ............................................................... 12

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts 252 (2012) ........................................... 8

1

INTEREST OF AMICUS CURIAE*

Joseph A. Grundfest is the William A. Franke Professor of Law and Business (Emeritus) at Stanford

Law School. He served as a Commissioner of the Securities and Exchange Commission from 1985 to 1990.

Professor Grundfest has taught and written in the

field of securities law for decades. He has published

extensively on federal securities regulation in leading

law journals, including the Harvard, Yale, and Stanford law reviews, and has filed amicus briefs in significant securities cases before this Court, including

Slack Technologies, LLC v. Pirani, 598 U.S. 759

(2023), and Halliburton Co. v. Erica P. John Fund,

Inc., 573 U.S. 258 (2014).

Professor Grundfest has written specifically on

Section 11 of the Securities Act of 1933—the statute

at the center of this case. See, e.g., Joseph A. Grundfest, Morrison, The Restricted Scope of Securities Act

Section 11 Liability, and Prospects for Regulatory Reform, 41 Iowa J. Corp. L. 1 (2015). He was a member

of the Commission that adopted the 1989 amendments to Item 303. See Management’s Discussion and

Analysis of Financial Condition and Results of Operations; Certain Investment Company Disclosures, 54

Fed. Reg. 22,427 (May 24, 1989). Also, as a member

of the audit committees of three publicly traded corporations, KKR, Inc., Oracle Corp., and Financial En* Pursuant to this Court’s Rule 37.2, amicus provided timely

notice to all parties of his intent to file this amicus brief. Pursuant to Supreme Court Rule 37.6, no counsel for a party authored

this brief in whole or in part, and no person or entity other than

amicus or his counsel made a monetary contribution to this

brief’s preparation.

2

gines, he has personally experienced the challenges

posed by SEC disclosure requirements, including under Section 11 and Item 303.†

† Amicus has previously provided consulting services to

Robinhood Markets, Inc., one of the petitioners. Amicus has no

current financial relationship with any party to this case. Although no rule imposes a duty to disclose this prior engagement,

amicus provides this information for the sake of full transparency.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court should grant the petition because the

decision below is wrong, deepens confusion in the

lower courts, and upends the basic design of the federal securities laws by transforming a system of periodic disclosure into one of quasi-continuous disclosure.

The petition correctly identifies the Ninth Circuit’s most immediate error. Section 11 of the Securities Act of 1933 does not require disclosure of information merely because a court later deems it material. It imposes liability for omissions only when they

render an affirmative statement misleading. The

Ninth Circuit collapsed those distinct requirements,

treating the alleged materiality of omitted interim financial information as enough by itself to create a

duty to disclose. That holding alone warrants review.

It also deepens an acknowledged circuit split by rejecting the First Circuit’s narrower “extreme departure”

test and aligning itself with the Second Circuit’s equation of materiality with duty to disclose. See Stadnick

v. Vivint Solar, Inc., 861 F.3d 31, 36 (2d Cir. 2017);

Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1210

(1st Cir. 1996); see also Pet. App. 27a (“[W]e hold that

the Shaw test is not the law of this circuit.”).

But the error runs deeper. The Ninth Circuit’s decision does not merely adopt the wrong standard for

disclosure of interim financial information. Like the

other circuits to address this issue, it assumes that

Section 11 imposes some duty to disclose such information in the first place. It does not. Here, Robinhood’s offering documents, issued during Q2, accu-

4

rately reported its Q1 2021 results, and no one disputes that those results were accurate. The Ninth

Circuit nevertheless held that those offering documents could be actionable because they were not accompanied by still-developing Q2 metrics, even

though Q2 had not yet closed and Robinhood therefore

had no final Q2 results to report. That holding necessarily creates a duty to update accurate historical results: It treats disclosure of completed Q1 results as

legally insufficient unless accompanied by developing

information from ongoing Q2 activity, thereby requiring Robinhood to update closed-quarter results with

still-unfolding quarter-to-date performance.

That rule cannot be squared with the basic design

of the federal securities laws or with this Court’s precedents. The securities laws establish a regime of periodic reporting, not rolling financial disclosure. Issuers report completed quarterly results on prescribed

deadlines. They do not, absent a specific statutory or

regulatory command, provide real-time updates about

still-developing financial performance as a quarter

unfolds. The Ninth Circuit’s rule—like the First and

Second Circuits’ variants—breaks from that framework, overrides Congress’s and the Commission’s chosen reporting regime, and imposes disclosure obligations the securities laws do not require.

ARGUMENT

I.

SECTION 11 DOES NOT CREATE A DUTY TO

UPDATE

Plaintiffs do not allege that Robinhood’s registration statement contained any false statement. Their

theory is instead that Robinhood’s accurate disclosure

of Q1 2021 results was not enough unless the offering

5

documents also included still-developing Q2 information before Q2 had closed. That is a duty-to-update

theory in substance. It treats disclosure of completed

quarterly results as legally insufficient unless accompanied by developing information from a still-open

quarter.

Section 11 imposes no such duty. Nothing in its

text requires issuers to pair accurate historical financial disclosures with developing information from a

still-open quarter. And this Court’s decision in Macquarie Infrastructure Corp. v. Moab Partners, L. P.,

601 U.S. 257 (2024), confirms that materiality alone

does not create a disclosure obligation. The broader

securities-law framework points the same way: Federal law requires periodic reporting of completed financial periods, not rolling disclosure of still-developing quarter-to-date results. By holding otherwise, the

Ninth Circuit not only committed the error the petition correctly identifies—collapsing materiality into

misleadingness—but also replaced the securities laws’

periodic-reporting regime with a judicially created

duty to update that Congress and the Commission

never adopted. Each error independently warrants

this Court’s review; together, they make review imperative.

1. Section 11 targets false or misleading registration statements. At most, it imposes a duty to correct

false or misleading statements; it does not create a

duty to update accurate historical disclosures. The

statute imposes liability only if a registration statement contains “an untrue statement of a material

fact” or omits a material fact that was either (1) “required to be stated therein” or (2) “necessary to make

the statements therein not misleading.” 15 U.S.C.

6

§ 77k(a). Section 11 thus targets statements that

were incorrect when made and therefore require correction. It does not target accurate historical disclosures that allegedly appear incomplete in light of developing information from an ongoing reporting period.

Courts have long recognized that the duty to correct and the duty to update are different. See, e.g.,

Stransky v. Cummins Engine Co., 51 F.3d 1329, 13311332 (7th Cir. 1995) (distinguishing between duty to

correct and duty to update); In re Burlington Coat

Factory Securities Litigation, 114 F.3d 1410, 1430 (3d

Cir. 1997) (same). A company has a duty to correct

when it “makes a historical statement that, at the

time made, the company believed to be true, but as

revealed by subsequently discovered information actually was not.” Stransky, 51 F.3d at 1331. That duty

applies only when the initial statement was “incorrect

when made.” Gallagher v. Abbott Laboratories, 269

F.3d 806, 810 (7th Cir. 2001). In contrast, the duty to

update requires companies to supplement prior disclosures that were “reasonable at the time made” but became “misleading when viewed in the context of subsequent events.” Burlington Coat Factory, 114 F.3d

at 1431.

Section 11’s focus on “untrue statement[s]” and

omissions that render any statements “misleading,”

15 U.S.C. § 77k(a), makes clear that it is concerned

with companies issuing inaccurate disclosures in the

first instance—not accurate historical disclosures that

plaintiffs seek to pair with developing information

from a still-open quarter. Section 11 may therefore

require correction of disclosures that were inaccurate

when made. But nothing in the statutory text creates

7

a duty to accompany accurate historical disclosure

with interim information from an ongoing quarter.

2. This textual conclusion is reinforced by this

Court’s holding in Macquarie. Just two Terms ago,

this Court affirmed that “[s]ilence, absent a duty to

disclose, is not misleading under Rule 10b-5,”

17 C.F.R, § 240.10b-5, and that “[e]ven a duty to disclose * * * does not automatically render silence misleading under Rule 10b-5(b).” Macquarie, 601 U.S. at

265 (internal quotation marks omitted). This Court

explained that a company violates Rule 10b-5(b) only

if it omits information that “renders affirmative statements misleading.” Ibid. That reasoning applies here

because Rule 10b-5 and Section 11 are nearly identical: both target untrue statements and omissions that

make statements misleading. And that parallel is no

accident. Rule 10b-5 was drawn directly from Section

17(a), and Section 11 uses materially the same language.*

Rule 10b-5 was “patterned directly upon Section 17(a) of the 1933 Act,” with the only substantive

change being that the rule applies to purchases as

well as sales of securities. 3 Thomas L. Hazen, The

Law of Securities Regulation § 12.16 (9th ed. 2025);

* To be sure, some lower courts in the Rule 10b-5 context have

suggested that a duty to update may arise in limited circumstances. But the circuits are split, and even those recognizing

such a duty have confined it to forward-looking statements or

“definite positive projections.” Backman v. Polaroid Corp., 910

F.2d 10, 17 (1st Cir. 1990); see also Stransky, 51 F.3d at 1332

(rejecting any duty to update). No court has held that Rule 10b5 imposes a duty to update a statement lacking “forward intent

and connotation.” Backman, 910 F.2d at 17.

8

see also Joseph A. Grundfest, Disimplying Private

Rights of Action under the Federal Securities Laws:

The Commission’s Authority, 107 Harv. L. Rev. 961,

980 n.71 (1994) (showing that Rule 10b-5’s “operative

provisions” are “drawn directly from [Section] 17”).

Indeed, as Commission staffer Milton Freeman later

recalled, “in drafting Rule 10b-5,” he “looked at Section 10(b) and * * * at Section 17, and * * * put them

together,” with the only discussion being whether the

phrase “in connection with the purchase and sale”

should be at the beginning or end of the rule.” Grundfest, Disimplying Private Rights at n.71 (quoting Milton Freeman, Conference on the Codification of the

Federal Securities Laws, 22 Bus. Law. 793, 922

(1967)).

Section 17, in turn, makes it unlawful to offer or

sell securities “by means of any untrue statement of a

material fact or any omission to state a material fact

necessary in order to make the statements made * * *

not misleading.” 15 U.S.C. § 77q(a).

Section 11 uses materially the same language.

Like Section 17, it targets “untrue statement[s]” and

omissions of material facts necessary to make other

statements “not misleading.” Compare 15 U.S.C.

§ 77k(a), with 15 U.S.C. § 77q(a).

The chain is thus straightforward: Congress used

this formulation in Section 17; the Commission carried it into Rule 10b-5; and Congress used the same

formulation in Section 11. Given those textual similarities, the three provisions should share the “same

meaning.” Smith v. City of Jackson, 544 U.S. 228, 233

(2005); see also Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 252

9

(2012) (“Statutes in pari materia are to be interpreted

together, as though they were one law.”).

This Court has long held that, “when Congress

uses the same language in two statutes having similar

purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in

both statutes.” Smith, 544 U.S. at 233. There is accordingly no reason to interpret Section 11’s prohibitions of false and misleading statements differently

from Section 17’s. There is also no reason to believe

that the Commission did not import that same meaning from Sections 17 and 11 into Rule 10b-5, when it

adopted Section 17’s operative text effectively verbatim. This Court’s “unanimous interpretation” of

Rule 10b-5 in Macquarie “is therefore a precedent of

compelling importance” here. Id. at 234; see also Pet.

App. 22a n.3 (recognizing that the “misleading”

prongs of Rule 10b-5 and Section 11 are “nearly identical” and interpreting them similarly).

That shared text, lineage, and meaning make the

consequence here straightforward. Just as a “failure

to disclose information” can only support a Rule 10b5 claim if it “renders affirmative statements made

misleading,” Macquarie, 601 U.S. at 265, a registration-statement omission triggers Section 11 liability

only when it results in a misleading statement—not

merely when the omission is material. Contra Pet.

App. 24a.

3. The Ninth Circuit’s continual-disclosure rule

also cannot be squared with the current regulatory

framework for affirmative disclosures. Where affirmative disclosure is warranted, the Commission has

10

specified periodic and event-driven mechanisms to

provide it. The Commission currently requires quarterly and annual reporting—filed on Forms 10-Q and

10-K, respectively. 17 C.F.R. §§ 240.13a-13, 240.13a14, 249.308a, 249.310. And it requires current reports

on Form 8-K for specified events (§§ 240.13a-11,

249.308)—such as entry into a material agreement

(Form 8-K Item 1.01), completion of a significant acquisition (Form 8-K Item 2.01), bankruptcy or receivership (Form 8-K Item 1.03), or key management

changes (Form 8-K Item 5.02). It also requires intraquarter reporting in connection with certain cybersecurity breaches. See Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure,

88 Fed. Reg. 51,896 (Aug. 4, 2023) (codified at

17 C.F.R. §§ 229.106, 232, 239, 240, 249).

The Commission’s enumeration of specific events

that trigger affirmative-disclosure obligations—beyond default quarterly and annual reporting—reinforces that there is no freestanding continuing duty to

disclose material information. Where the Commission has required intra-quarter disclosures, it has

done so expressly. It has not expressly imposed a continuing affirmative-disclosure obligation for registration statements. The absence of such an express regulation here further demonstrates that no such obligation exists.

The Ninth Circuit’s decision thus improperly creates a continual-disclosure obligation that the Commission has rightly declined to impose—and that decision cannot stand. The interpretations by the First

and Second Circuits that also impose Section 11 duties to update are also incorrect for the same reasons.

11

II. ITEM 303 CREATES NO DUTY TO UPDATE

Section 11 imposes no obligation to accompany accurate historical quarterly disclosures with post-quarter information. But the Ninth Circuit reached the

same erroneous result through a second, distinct analytic move: It construed Item 303 of Regulation S-K

to require disclosure of incomplete, out-of-quarter financial developments in a registration statement.

See Pet. App. 86a-87a (Rawlinson, J., dissenting) (majority’s approach “exposes Robinhood to strict liability

under Section 11 for not disclosing certain ‘incomplete

intra-quarterly results’ occurring within months of

the IPO”). Item 303’s text forecloses that reading.

Item 303 requires disclosure of certain “known

trends or uncertainties” in SEC filings, 17 C.F.R.

§ 229.303(b)(2)(ii), but it does so within the federal securities laws’ periodic-reporting framework. It does

not create a free-floating duty to update triggered by

the effectiveness of a registration statement, or by any

other event. To the contrary, this Court has explained

that Item 303 “requires companies to disclose certain

information in periodic filings with the SEC.” Macquarie, 601 U.S. at 259 (emphasis added). The obligation is thus tied to periodic filings—not to the filing or

effectiveness of a registration statement.

Item 303’s text leaves no room for the Ninth Circuit’s contrary reading. Item 303 requires registrants

to discuss “material changes in financial condition

from the end of the preceding fiscal year to the date of

the most recent interim balance sheet provided.”

17 C.F.R. § 229.303(c)(1). That command is backward-looking. It requires discussion only through the

date of the most recent interim balance sheet actually

12

provided. It does not require discussion of developments arising after that date.

The same is true of Item 303’s treatment of results

of operations. It requires discussion of “the most recent fiscal year-to-date period for which a statement

of comprehensive income is provided and the corresponding year-to-date period of the preceding fiscal

year.” 17 C.F.R. § 229.303(c)(2)(i). Again, the obligation is tied to the most recent period for which financial statements are provided. It does not extend beyond that period to later, still-developing events.

Item 303 likewise calls for discussion of “the most

recent quarter for which a statement of comprehensive income is provided” and a comparative period.

17 C.F.R. § 229.303(c)(2)(ii). Once more, the rule is

pegged to the most recent completed quarter for which

financial statements are included. It does not extend

to information arising after the close of that quarter.

If the Commission had wanted Item 303 to require

disclosure of developments after that quarter closed,

it would have said so. It did not.

Robinhood therefore complied with Item 303 regardless whether the subsequent financial data could

be characterized as a “known trend.” The rule does

not call for discussion of information arising after the

most recent interim financial statements provided.

The Commission’s most recent amendments to

Item 303 underscore the point. In modernizing and

streamlining the rule, the Commission again specified

the temporal scope of required management discussion and analysis, yet nowhere required disclosure of

developments occurring after the most recent completed interim period. See Management’s Discussion

13

and Analysis, Selected Financial Data, and Supplementary Financial Information, 86 Fed. Reg. 2080

(Jan. 11, 2021). That choice reflects regulatory judgment. When an agency carefully defines the periods

that trigger disclosure, courts may not treat its decision not to require real-time supplementation as an

invitation to impose that obligation themselves. See

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565

(1980) (“[C]aution must temper judicial creativity in

the face of * * * regulatory silence.”).

In all events, Item 303 cannot be construed to

override Section 11. Even if Item 303 could be read

more broadly in isolation, it cannot be interpreted to

impose a disclosure obligation that Section 11 itself

does not recognize. “An agency’s regulation cannot

‘operate independently of’ the statute that authorized

it.” FEC v. Cruz, 596 U.S. 289, 301 (2022) (quoting

California v. Texas, 593 U.S. 659, 679 (2021)). This

Court has accordingly long held that regulations may

not be interpreted to “create a rule out of harmony

with the statute.” Manhattan General Equipment Co.

v. Commissioner of Internal Revenue, 297 U.S. 129,

134 (1936); see also United States v. LaBonte, 520 U.S.

751, 757 (1997) (when a regulation “is at odds” with a

statute, the regulation “must give way”). The Ninth

Circuit’s construction of Item 303 does exactly that.

The proper reading of Item 303 is therefore

straightforward. Faced with a potentially broad regulatory phrase like “known trends,” this Court should

adopt the permissible interpretation that keeps the

regulation in harmony with the statute. See Decker v.

Northwest Environmental Defense Center, 568 U.S.

597, 609 (2013); see also United States v. Vogel Fertilizer Co., 455 U.S. 16, 25 (1982) (courts must “consider

14

first whether the [r]egulation harmonizes with the

statutory language”). Here, that means reading Item

303 as its text demands: it requires discussion of

trends and uncertainties in time periods limited by

prior periodic filings. It does not require disclosure of

trends or uncertainties arising after those periods.

The weight of authority has taken that approach.

Courts have been reluctant to impose liability for failure to disclose financial data from a quarter in progress because—as the Fifth Circuit explained—such

data is “necessarily incomplete.” Kapps v. Torch Offshore, Inc., 379 F.3d 207, 221 (5th Cir. 2004) (quoting

Zucker v. Quasha, 891 F. Supp. 1010, 1016 (D.N.J.

1995), aff’d, 82 F.3d 408 (Table) (3d Cir. 1996)). The

Eleventh Circuit also concludes that Item 303 does

not require disclosure of partial-quarter prescription

data. Oxford Asset Management, Ltd. v. Jaharis,

297 F.3d 1182, 1190 (11th Cir. 2002). And the Southern District of New York has repeatedly declined to

treat Item 303 as requiring “real-time disclosures” of

intra-quarter performance. Willard v. UP Fintech

Holding Ltd., 527 F. Supp. 3d 609, 620 (S.D.N.Y.

2021); see also In re AT&T/DirecTV Now Securities

Litigation, 480 F. Supp. 3d 507, 529 (S.D.N.Y. 2020);

Schoenhaut v. American Sensors, Inc., 986 F. Supp.

785, 791 (S.D.N.Y. 1997). The panel majority broke

from that understanding.

Certiorari is additionally warranted to restore the

proper relationship between Section 11 and Item 303

and to prevent the Ninth Circuit’s rule from becoming

a template for reintroducing continuous-update liability in public-offerings nationwide.

15

III. THIS COURT’S REVIEW IS FURTHER WARRANTED

BECAUSE OF THE COMMISSION’S PROPOSED

MOVE TO SEMIANNUAL REPORTING

Securities and Exchange Commission Chairman

Paul Atkins has announced that the SEC intends to

propose a rule change—supported by the Administration—that would permit public companies to transition from quarterly to semiannual reporting. See, e.g.,

Soyoung Ho, SEC to Revisit Semiannual Reporting After Trump’s Call for Change, Thomson Reuters

(Sept. 18, 2025), https://tinyurl.com/5eavtyxm.

If the Ninth Circuit’s “duty to update” is allowed

to stand, semiannual reporting will materially expand

the window of registrants’ potential litigation exposure. Under the current quarterly regime, any alleged

“update” obligation would arise, at most, within a 90day cycle. Under a semiannual regime, registrants

within the Ninth Circuit could face claims for failing

to disclose alleged “known trends” that emerge during

a six-month, 180-day cycle. Assuming that events

triggering potential Item 303 obligations are randomly distributed over time, doubling the length of

the time period subsequent to the most recent periodic

filing will double the incidence of disputes over duties

to update under Section 11.

This result would distort the regulatory balance

the Commission is attempting to recalibrate. A shift

to semiannual reporting is meant to reduce compliance burdens and give companies greater room to focus on long-term strategy and capital formation. See

Matthew Kaplan et al., The End of Quarterly Reporting in the United States?, Harv. L. Sch. F. on Corp.

Governance (Oct. 5, 2025). But judicially created up-

16

dating obligations would move in the opposite direction. They would impose an additional disclosure regime, enforced through private litigation, on top of the

framework the Commission itself has chosen. For registration statements, semiannual reporting would

then exist in name only, because disclosure policy

would be shaped not by the Commission’s rulemaking

authority, but by after-the-fact judicial expansion.

IV. THIS CASE PRESENTS THE COURT WITH AN

OPPORTUNITY TO PROVIDE CLARITY ON

DISCLOSURE OBLIGATIONS THAT FACEBOOK AND

NVIDIA ULTIMATELY DID NOT

The questions presented are pure questions of

statutory interpretation. They were fully aired below

and have been extensively considered by courts across

the country. This case is therefore an excellent vehicle for resolving an important legal issue with nationwide consequences for companies conducting public

offerings. See Pet. 36. In that sense, it is nothing like

the Court’s recent experience with Facebook, Inc. v.

Amalgamated Bank, No. 23-980 (U.S. Dec. 26, 2024)

and NVIDIA Corp. v. E. Ohman J:Or Fonder AB,

No. 23-970 (U.S. Jan. 13, 2025)—both of which presented significant case-specific vehicle issues.

Facebook presented the question whether failing

to disclose that a warned-of risk had previously materialized was misleading. At oral argument, the parties seemed to agree, at least in part, on the answer to

that question. See Tr. of Oral Arg. at 51:2-6 (Plaintiffs’ counsel conceding that “as to the actual question

presented, we agree that a risk disclosure is not misleading because it omits disclosure of an event that is

immaterial because it risks no business harm.”). Fur-

17

ther, that question turned on case-specific disputes—

such as whether investors knew about the previously

materialized risk when the relevant statement was

made—that may have rendered the case a suboptimal

vehicle to address disclosure obligations. See In re Facebook, Inc. Securities Litigation, 87 F.4th 934, 950

(9th Cir. 2023) (noting disagreement over the factual

record). The Court ultimately dismissed the case as

improvidently granted.

In NVIDIA, plaintiffs alleged that the company

and certain officers made misleading statements

about the significance of cryptocurrency demand on

the company’s financial performance. See E. Ohman

J:Or Fonder AB v. NVIDIA Corp., 81 F.4th 918, 923

(9th Cir. 2023). The questions presented concerned

the adequacy of plaintiffs’ pleading of scienter and falsity under the PSLRA, including whether expert analysis could substitute for particularized factual allegations. Similar to Facebook, several Justices raised

concerns at oral argument about the fact-bound issues

the Court may need to address in resolving the specific

question presented. Tr. of Oral Arg. at 11:16-22,

37:19-21. NVIDIA was also dismissed as improvidently granted.

This case is fundamentally different from Facebook and NVIDIA. The Ninth Circuit adopted two legal rules—its interpretations of Section 11 and Item

303—that implicitly, and wrongly, authorize a duty to

update. Whether those rules are correct is a pure

question of law. It does not depend on the precise

events preceding the effectiveness of Robinhood’s registration statement, or on the details of the post-quarter developments plaintiffs allege.

It turns on

straightforward questions of statutory and regulatory

18

interpretation. So unlike Facebook and NVIDIA—

both of which posed case-specific vehicle issues—this

case presents a clean, recurring, and dispositive legal

issue that warrants this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

BRIAN A. RICHMAN

JAIME R. BARRIOS

GIBSON, DUNN &

CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

JONATHAN C. BOND

Counsel of Record

BRANDON C. WOLF

ANDREW Y. EBRAHEM

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

JBond@gibsondunn.com

Counsel for Amicus Curiae

March 11, 2026