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 AMICI CURIAE THE SECURITIES

INDUSTRY AND FINANCIAL MARKETS

ASSOCIATION AND THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA IN SUPPORT OF PETITIONERS

___________

KEVIN CARROLL

SECURITIES INDUSTRY AND

FINANCIAL MARKETS

ASSOCIATION

1099 New York Ave., NW

WASHINGTON, D.C. 20001

EAMON P. JOYCE*

FRANCESCA BRODY

AUSJIA PERLOW

BRANDON NYE

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-8555

ejoyce@sidley.com

Counsel for Amici Curiae

March 11, 2026

* Counsel of Record

[Additional counsel listed on inside cover.]

JANET GALERIA

AUDREY DOS SANTOS

U.S. CHAMBER

LITIGATION CENTER

1615 H Street NW

Washington, DC 20062

(202) 463-5747

MATTHEW J. DOLAN

SIDLEY AUSTIN LLP

1001 Page Mill Road

Building 1

Palo Alto, CA 94304

(650) 565-7000

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICI CURIAE ..........................

1

SUMMARY OF ARGUMENT ..............................

3

ARGUMENT .........................................................

5

I. THE NINTH CIRCUIT’S HOLDING ON

SECTION 11 MISLEADING OMISSIONS

DEPARTS

FROM

TEXT

AND

PRECEDENT, WIDENS A CIRCUIT

SPLIT, AND INVITES A SURGE OF

EVENT-DRIVEN SECTION 11 CLAIMS ....

5

A. The Ninth Circuit’s New Section 11

Standard Deepens a Multi-Circuit

Split. .........................................................

6

B. The Ninth Circuit’s Decision Collapses

Distinct Elements of the Disclosure

Standard Recognized by This Court’s

Precedents. ..............................................

9

II. THE

NINTH

CIRCUIT’S

INTERPRETATION

OF

ITEM

303

DEPARTS

FROM

BOTH

THE

REGULATION’S

TEXT

AND

ITS

SETTLED UNDERSTANDING ACROSS

OTHER

CIRCUITS,

AND

IS

UNWORKABLE. ...........................................

11

A. The Ninth Circuit Abandons the Careful

Limitations Drawn by the Fifth and

Eleventh Circuits. .....................................

12

B. The Ninth Circuit Imposes an Atextual

Quantification Mandate. ..........................

13

(i)

ii

C. The Ninth Circuit’s Item 303 Holding

Muddies a Complicated Regulatory

Regime. ......................................................

14

III. THE COURT SHOULD GRANT REVIEW

TO

PREVENT

SIGNIFICANT

DISRUPTION OF CAPITAL MARKETS. ....

15

A. The Ninth Circuit’s Section 11 Liability

Standard and Item 303 Reporting

Requirements

Have

Material

Consequences

for

the

Business

Community. ..............................................

16

1. The Ninth Circuit's Holding Will

Increase Over-Disclosure. ...................

17

2. Over-Disclosure

and

Increased

Litigation Risk Will Raise the Cost of

an IPO. .................................................

18

3. These Impacts Contravene the SEC’s

Intended Regulatory Regime ..............

20

The Ninth Circuit’s Decision Is

Unworkable

for

Companies

Attempting in Good Faith to Monitor

and Report Information to Investors. ..

21

CONCLUSION .....................................................

22

B.

iii

TABLE OF AUTHORITIES

CASES

Page

In re Adams Golf, Inc. Sec. Litig., 381 F.3d

267 (3d Cir. 2004) .......................................

8

Basic Inc. v. Levinson, 485 U.S. 224

(1988) ..........................................................

10

In re Burlington Coat Factory Sec. Litig.,

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

7

Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S.

164 (1994) ...................................................

21

Finnerty v. Stiefel Lab’ys, Inc., 756 F.3d

1310 (11th Cir. 2014) .................................

7

Higginbotham v. Baxter Int’l, Inc., 495 F.3d

753 (7th Cir. 2007) .....................................

13

Ieradi v. Mylan Lab’ys, Inc., 230 F.3d 594

(3d Cir. 2000) ..............................................

19

Indiana Pub. Ret. Sys. v. Pluralsight, Inc.,

45 F.4th 1236 (10th Cir. 2022) ..................

7

Jackvony v. RIHT Fin. Corp., 873 F.2d 411

(1st Cir. 1989) .............................................

17

Kapps v. Torch Offshore, Inc., 379 F.3d 207

(5th Cir. 2004) ........................................... 12, 13

Macquarie Infrastructure Corp. v. Moab

Partners, L. P., 601 U.S. 257 (2024) ..........

10

Merrill Lynch, Pierce, Fenner & Smith Inc.

v. Dabit, 547 U.S. 71 (2006) .......................

16

In re Morgan Stanley Info. Fund Sec.

Litig., 592 F.3d 347 (2d Cir. 2010) ............

19

Omnicare, Inc. v. Laborers Dist. Council

Const. Indus. Pension Fund, 575 U.S.

175 (2015) ...................................................

10

Oxford Asset Mgmt., Ltd. v. Jaharis, 297

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

12

iv

TABLE OF AUTHORITIES—Continued

Page

Shaw v. Digital Equip. Corp., 82 F.3d 1194

(1st Cir. 1996) ............................................. 7, 8

Siracusano v. Matrixx Initiatives, Inc., 585

F.3d 1167 (9th Cir. 2009) ...........................

19

Sodha v. Golubowski, No. 24-1036, 2025

WL 3142085 (9th Cir. Oct. 8, 2025) ..........

9

In re Time Warner Inc. Sec. Litig., 9 F.3d

259 (2d Cir. 1993) .......................................

8

TSC Indus., Inc. v. Northway, Inc., 426

U.S. 438 (1976) .................................. 12, 17, 19

STATUTES and REGULATIONS

15 U.S.C. § 77a et seq. ...................................

1

15 U.S.C. § 77k(a).......................................... 2, 9

17 C.F.R. § 229.303 ....................................... 2, 11

17 C.F.R. § 240.10b-5 ....................................

10

OTHER AUTHORITIES

2019 Year in Review, Securities Class Action

Filings, CORNERSTONE RESEARCH (2020)

[https://perma.cc/W8S8-RJMW] ................

2025 Year in Review, Securities Class Action

Filings, CORNERSTONE RESEARCH (2026)

[https://perma.cc/KZW7-47JD] ..................

Ernst & Young, To the Point: Now Is the

Time to Address Disclosure Overload, at 1

(June 21, 2012) [https://perma.cc/4X5NLNLG].........................................................

Jay R. Ritter, Initial Public Offerings:

Updated Long-run Statistics (Feb. 18,

2026) [https://perma.cc/2XR8-LBXL] ........

18

16

18

19

v

TABLE OF AUTHORITIES—Continued

Page

Management’s Discussion and Analysis of

Financial Condition and Results of

Operations; Certain Investment Company

Disclosures, SEC Release No. 6835, 1989

WL 1092885 (May 18, 1989) .................... 11, 14

Paul S. Atkins, Chairman of the SEC,

Revitalizing America’s Markets (Dec. 2,

2025) [https://perma.cc/Z56B-3NT7] ...... 18, 20

Paul S. Atkins, Chairman of the SEC,

Statement on Reforming Regulation S-K,

SEC

(Jan.

13,

2026)

[https://perma.cc/Z56B-3NT7] ...................

20

Report from the Office of the Advocate for

Small Business Capital Formation (2025)

[https://perma.cc/DN5X-A73E] .................. 9, 16

SEC, Release No. 33-10890, 86 FR 2080

(Feb. 10, 2021) ............................................

20

SEC, Statement of James Moloney,

Director, Coming Attractions From the

Division of Corporation Finance (Feb. 13,

2026) [https://perma.cc/G3KG-YQX9] ...... 15, 20

Yangyang Chen et al., Litigation Risk and

IPO Underpricing: Evidence from Federal

Judge Ideology, REV ACCOUNT STUD

(2025) [https://perma.cc/A84M-N392] .......

19

SCHOLARLY AUTHORITIES

Mark S. Croft, MD&A: The Tightrope of

Disclosure, 45 S.C. L. Rev. 477 (1994).......

Suzanne J. Romajas, Note, The Duty to

Disclose Forward-Looking Information: A

Look at the Future of MD&A, 61 Fordham

L. Rev. S245 (1993) ....................................

14

14

INTEREST OF AMICI CURIAE 1

The Securities Industry and Financial Markets

Association (“SIFMA”) is a securities industry trade

association representing the interests of hundreds of

securities firms, banks, and financial asset managers

across the United States. SIFMA’s mission is to

support a strong financial sector while promoting

investor opportunity, capital formation, job creation,

economic growth, and the cultivation of public trust

and confidence in the financial markets.

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

federation. It represents approximately 300,000 direct

members and indirectly represents the interests of

more than three million companies and professional

organizations of every size, in every economic sector,

and from every region of the country. An important

function of the Chamber is to represent the interests

of its members in matters before Congress, the

Executive Branch, and the courts. To that end, the

Chamber regularly files amicus curiae briefs in cases,

like this one, that raise issues of concern to the nation’s

business community.

Many of amici’s members are subject to the

Securities Act of 1933 (“Securities Act”), 15 U.S.C.

§ 77a et seq., and accordingly, Section 11(a) of the

1 Pursuant to Supreme Court Rule 37.6, amici curiae state that

no counsel for any party authored this brief in whole or in part,

and no entity or person, aside from amici curiae, their members,

or their counsel, made any monetary contribution intended to

fund the preparation or submission of this brief. Pursuant to

Supreme Court Rule 37.2, amici curiae state that all counsel of

record for the parties received notice of the intention of amici

curiae to file this brief in support of Petitioners at least 10 days

before the deadline to file this brief.

2

Securities Act, 15 U.S.C. § 77k(a). They are also

subject to Regulation S-K and, specifically, to its Item

303, which calls for management to discuss and

analyze certain “trends” and “uncertainties.” 17

C.F.R. § 229.303. For decades, amici’s members and

other issuers of public securities have been issuing

quarterly data, and publishing disclosures that

include all material information that, if omitted, would

render the public statements misleading.

And,

pursuant to Item 303, amici’s members have been

reporting trends and uncertainties that are reasonably

likely to have a material impact on net sales, revenue,

or income, as well as events that are reasonably likely

to cause a material change in the relationship between

costs and revenues.

Breaking with four other federal courts of appeals

and creating conflicts with this Court’s precedent

along the way, the Ninth Circuit’s decision (Pet. App.

A) upended these settled reporting requirements,

including the well-established quarterly reporting

cadence. Over a dissent by Judge Rawlinson, the

panel majority created new, burdensome intra-quarter

reporting requirements and significantly expanded

the scope of information required to be disclosed.

First, the Ninth Circuit held that when a company’s

registration statement discloses prior quarterly

results, the company has an obligation to disclose all

material events that occur in the quarter in progress,

regardless of whether those events render statements

in the registration statement misleading. Second, the

court held that Item 303 requires the disclosure and

“quantification” of intra-quarter “events,” “trends,”

and “uncertainties” of no minimum duration.

These reporting requirements not only affect how

public companies must monitor interim data and draft

already-lengthy public disclosures, but they also

3

significantly increase the litigation risk associated

with issuing public securities. Amici have an interest

in restoring the proper balance between disclosure and

practicability that allows companies to access efficient

public capital markets.

SUMMARY OF ARGUMENT

Certiorari is warranted because the Ninth Circuit’s

decision departs from the text of the relevant statutes

and regulations as well as from the precedent of its

sister circuits and this Court. The need for review is

significant and immediate because amici’s members

and other businesses and investors participating in

the public securities markets now face a more

burdensome, unprecedented disclosure regime. The

Ninth Circuit’s ruling also improperly expands the

scope and relaxes the elements of Section 11 liability,

threatening greater litigation risk for companies

trying to access capital and providing a significantly

easier path to discovery for plaintiffs.

The circuits were already split, as lower courts

remain confused about how to apply Section 11 to

undisclosed information from the quarter in progress.

The Ninth Circuit exacerbated this split and strayed

from this Court’s precedents in holding that the

materiality and duty-to-disclose analyses “coalesce”

for Section 11 liability anytime an issuer discloses

prior quarterly results without disclosing any material

events in the interim. The holding amounts to a

bright-line rule that issuers must disclose any

material information from the quarter in progress

without regard to whether omission would render a

statement in registration materials misleading. Such

a rule is contrary to the express statutory text; it

significantly widens the scope of liability; and it

departs from the existing multi-circuit split in a way

4

that

only

introduces

impracticalities for issuers.

more

burdens

and

Further, the Ninth Circuit’s reading of Item 303

departs from the understanding of disclosure

requirements in two other circuits. The Fifth and

Eleventh Circuits have held that Item 303’s disclosure

obligations are limited to persistent conditions or

sudden and dramatic changes in conditions—practical

bounds placed on an otherwise confusing regulation

that courts and issuers alike struggle to interpret.

This additional conflict introduced by the decision

below is highly significant to business. The Ninth

Circuit’s requirement that companies disclose all

events, trends, or uncertainties with no minimum

duration or principled limits is an unworkable

standard—effectively

a

real-time

disclosure

obligation. The result will be a burden on businesses

and information overload for investors, with little use

except to fend off litigation over any minor “event” or

“uncertainty.” That is antithetical to the purpose of

Item 303, which is to give investors a window into

management’s perspective on business conditions.

The Ninth Circuit’s additional requirement that

issuers “quantify” the potential effects of even

transitory events or uncertainties is impractical and

found nowhere in the text of Item 303. The Ninth

Circuit’s decision poses many questions for businesses

regarding how and when interim data needs to be

collected, how much analysis businesses must do to

“quantify” transitory ebbs and flows of the business

environment, and how to deal with changes that arise

between the event date, the date analyses are

finalized, and the ultimate disclosure date.

The Ninth Circuit is an important locus of public

offerings and hosts a large share of the nation’s

securities class action litigation. And given the

5

Securities Act’s flexible venue provision, more

plaintiffs will seek to avail themselves of the Ninth

Circuit’s newfangled standards. Allowing the panel’s

burdensome and atextual ruling to go without review

is intolerable for both the business community and

investors. This Court should grant review to resolve

an ongoing circuit split and reject the Ninth Circuit’s

decision.

ARGUMENT

I. THE NINTH CIRCUIT’S HOLDING ON

SECTION 11 MISLEADING OMISSIONS

DEPARTS FROM TEXT AND PRECEDENT,

WIDENS A CIRCUIT SPLIT, AND INVITES A

SURGE OF EVENT-DRIVEN SECTION 11

CLAIMS.

The Ninth Circuit’s ruling on Section 11’s

misleading-omissions standard warrants this Court’s

review because it exacerbates a pre-existing circuit

split and departs from statutory text and this Court’s

precedent.

The Ninth Circuit held that the duty to disclose

“coalesce[s]” with the materiality requirement

anytime “Plaintiffs’ theory concerns a prior time

period . . . and some subsequent event.” Pet. App. A at

23a–24a. The court reasoned that because “there was

a statement related to a particular time period (i.e., the

disclosure of the results from the last reported fiscal

quarter), followed by an undisclosed event (i.e., the

decline in Robinhood’s performance) that took place

after that period,” the court need not “draw a

distinction between materiality and the duty to

disclose.” Id. at 24a. The court thus created a brightline rule that anytime an issuer reports prior quarterly

results in a registration statement, it must also report

all potentially material events from the quarter in

6

progress, or otherwise risk Section 11 liability. Such

an intra-quarter reporting requirement is found

nowhere in Section 11’s text.

There was already confusion among lower courts as

to when to apply Section 11 liability when an issuer

fails to disclose material information from the quarter

in progress. The Ninth Circuit’s decision splits in

principle from the Third, Tenth, and Eleventh

Circuits, which have each held that issuers must only

update their disclosures when new information (not

required to be disclosed) is material and renders the

prior disclosures misleading. The Ninth Circuit also

expressly rejected the First Circuit’s bespoke rule for

disclosure of interim information in a registration

statement. And though it purported to follow the

Second Circuit, its holding in fact departs from Second

Circuit law as well. The Third, Tenth, and Eleventh

Circuit’s rulings align with this Court’s precedents,

which have consistently distinguished materiality

from the duty to disclose.

A. The Ninth Circuit’s New Section 11

Standard Deepens a Multi-Circuit Split.

The Ninth Circuit’s new Section 11 standard

exacerbates a multi-circuit split, breaking from the

Third, Tenth, and Eleventh Circuits in one way, from

the First Circuit in another way, and from the Second

Circuit in yet another way.

The majority of those circuits hold that, in the duty

to update context, 2 disclosure of new information (not

2 While this case is not strictly a duty-to-update case, the Ninth

Circuit’s ruling applies the analysis of a duty-to-update standard

by requiring disclosure of all material information (not already

required to be disclosed) implicating “the relationship between a

prior statement concerning a particular time period,” such as

7

otherwise required to be disclosed) is only required

where the new information renders the prior required

disclosures misleading. See In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1431 (3d Cir. 1997)

(“The duty to update, in contrast to the duty to correct,

concerns statements that, although reasonable at the

time made, become misleading when viewed in the

context of subsequent events.”); Indiana Pub. Ret. Sys.

v. Pluralsight, Inc., 45 F.4th 1236, 1248 (10th Cir.

2022) (holding that materiality does not “create an

affirmative duty to disclose”); Finnerty v. Stiefel

Lab’ys, Inc., 756 F.3d 1310, 1317 (11th Cir. 2014)

(“Specifically, a duty exists to update prior statements

if the statements were true when made, but

misleading or deceptive if left unrevised.”). For

example, unlike the Ninth Circuit, the Third Circuit

has rejected the notion that “the accurate disclosure of

a line of past successes . . . contain[s] the implication

that the current period is going just as well.”

Burlington Coat Factory, 114 F.3d at 1433.

The Ninth Circuit also expressly split (Pet. App. A at

26a–29a) from the First Circuit, which itself deviates

from the Third, Tenth, and Eleventh Circuits. The

First Circuit uses an “extreme departure” test to

assess whether an issuer has a duty to disclose interim

information for purposes of Section 11 liability. See

Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1210–11

(1st Cir. 1996). Under this test, an issuer has a duty

to disclose interim information (since the last reported

quarter) if the non-public information indicates that

the quarter in progress will be an extreme departure

from the range of results one would reasonably

anticipate from the prior reported results. Id. The

Ninth Circuit’s approach, by contrast, undermines the

prior financial results, “and an event subsequent to that time

period.” Pet. App. A at 23a.

8

quarterly reporting regime altogether. It expands the

duty to disclose interim events with no principled

limitation—any “subsequent event” that may be

material to a reasonable investor must be disclosed

because the corporation “disclos[ed] [] the results from

the last reported fiscal quarter.” Pet. App. A at 24a;

compare Shaw, 82 F.3d at 1202 (“[T]he mere

possession of material nonpublic information does not

create a duty to disclose it.”). This split, even standing

alone, would warrant review.

The Ninth Circuit also departed from the Second

Circuit, even while purporting to follow it. The court

below (Pet. App. A at 23a) cited In re Time Warner Inc.

Sec. Litig., 9 F.3d 259 (2d Cir. 1993), as the basis for

its new disclosure standard.

But Time Warner in fact reasons that the duty to

disclose and the materiality test coalesce when a

subsequent event “renders the prior statement false or

misleading” if not disclosed. Id. at 267 (emphasis

added). Time Warner thus acknowledges that, in the

absence of a regulatory duty to disclose, liability for an

omission requires finding that a prior statement was

rendered misleading. While the Time Warner court

said, in dicta, that it is “difficult to imagine a

circumstance” in which a prior statement would not be

rendered misleading if a subsequent event

“significantly altered the ‘total mix’ of information

available,” it did not hold that would always be the

case. Id. at 268 (internal citation omitted). Plainly,

that would only be true if the subsequent event altered

the mix of information related to that prior statement

in such a way as to affect its truth or falsity. That is

why courts must separately inquire into whether a

statement by the issuer is alleged to have been

rendered misleading, as the majority of courts hold,

and not only consider its materiality. See In re Adams

9

Golf, Inc. Sec. Litig., 381 F.3d 267, 277 (3d Cir. 2004)

(“A determination that information missing from a

registration statement and prospectus is material does

not end our analysis. We must also decide whether the

issuer had the duty to disclose that material fact such

that its omission made the statement misleading.”).

Further percolation of this issue is unlikely and

unnecessary. The Ninth Circuit’s decision breaks with

a number of other circuits, and, as discussed infra

Section III.A., a substantial portion of securities

litigation is already concentrated in the Ninth Circuit

because many IPOs originate within the Ninth Circuit.

See SEC, Staff Report from the Office of the Advocate

for Small Business Capital Formation, at 56 (2025)

[https://perma.cc/DN5X-A73E] (showing concentration

of offerings in California). And given the Securities

Act’s flexible venue provision, plaintiffs may flock

there to take advantage of this ruling. The Ninth

Circuit has already declined to review the decision en

banc. Sodha v. Golubowski, No. 24-1036, 2025 WL

3142085 (9th Cir. Oct. 8, 2025). Therefore, to ensure

uniformity, this Court should review the Ninth

Circuit’s ruling and clarify the Section 11 standard for

the divided lower courts.

B. The Ninth Circuit’s Decision Collapses

Distinct Elements of the Disclosure

Standard Recognized by This Court’s

Precedents.

The Ninth Circuit read the express “misleading”

requirement out of Section 11 liability for statements

rendered misleading by omission.

Section 11(a)

requires that registration statements disclose, among

other things, “material fact[s] . . . necessary to make

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

§ 77k(a). By its plain text, Section 11 thus requires

disclosure when information is both material to a

10

reasonable investor and necessary to make the

registration statement not misleading; materiality

alone does not create a disclosure obligation.

This Court’s precedents repeatedly acknowledge the

distinction between the materiality and duty-todisclose elements of statements rendered misleading

by omission. See, e.g., Omnicare, Inc. v. Laborers Dist.

Council Const. Indus. Pension Fund, 575 U.S. 175, 194

(2015) (“Section 11’s omissions clause, after all, is not

a general disclosure requirement; it affords a cause of

action only when an issuer’s failure to include a

material fact has rendered a published statement

misleading.”); see also Basic Inc. v. Levinson, 485 U.S.

224, 235 (1988) (under the Exchange Act’s similar

language, arguments that disclosure of merger

discussions would be premature are “more properly

considered under the rubric of an issuer’s duty to

disclose” but are “inapposite to the definition of

materiality”).

Moreover, this Court recently held that nearly

identical language in Section 10(b) of the Exchange

Act and Rule 10b-5(b) “do[es] not create an affirmative

duty to disclose any and all material information.

Disclosure is required under these provisions only

when necessary to make statements made . . . not

misleading.” Macquarie Infrastructure Corp. v. Moab

Partners, L. P., 601 U.S. 257, 264 (2024) (cleaned up)

(quoting Matrixx Initiatives, Inc. v. Siracusano, 563

U.S. 27, 44 (2011)); see 17 C.F.R. § 240.10b-5.

“Logically and by its plain text, the Rule requires

identifying affirmative assertions (i.e., ‘statements

made’) before determining if other facts are needed to

make those statements ‘not misleading.’” Macquarie,

601 U.S. at 264. The Ninth Circuit’s decision therefore

flies in the face of the plain text of the statute and the

precedents of this Court.

11

II. THE NINTH CIRCUIT’S INTERPRETATION

OF ITEM 303 DEPARTS FROM BOTH THE

REGULATION’S

TEXT

AND

ITS

UNDERSTANDING

ACROSS

OTHER

CIRCUITS, AND IS UNWORKABLE.

The Ninth Circuit’s atextual expansion of the

disclosure obligations under Item 303 also warrants

this Court’s review. Item 303 of Regulation S-K

requires disclosures that include “discussion and

analysis” of “known trends or uncertainties” that are

reasonably likely to materially impact a company’s

financial condition and results of operations (called

MD&As). 17 C.F.R. § 229.303. The SEC intended this

provision to give investors the opportunity to view a

company “through the eyes of management by

providing both a short and long-term analysis.”

Management’s Discussion and Analysis of Financial

Condition and Results of Operations; Certain

Investment Company Disclosures, SEC Release No.

6835, 1989 WL 1092885, at *3 (May 18, 1989) (“1989

Release”). The provision is “intentionally general” to

allow “a flexible approach [that] elicits more

meaningful disclosure.” 1989 Release, 1989 WL

1092885, at *1.

Item 303 thus centers on

management’s informed assessment of developments

that are reasonably likely to affect the company—not

on continuous disclosure of every interim fluctuation.

The Ninth Circuit’s holding frustrates that central

purpose: it splits from the Fifth and Eleventh Circuits

by eliminating meaningful limiting principles for what

constitutes a “trend” or “uncertainty” requiring

disclosure, and it imposes a vague and extra-textual

obligation to “quantify” interim developments. Item

303 is already difficult for courts and businesses to

interpret. The Ninth Circuit’s imprudent expansion

guarantees that Item 303 disclosures will become the

12

very “avalanche of trivial information” the SEC sought

to avoid, TSC Indus., Inc. v. Northway, Inc., 426 U.S.

438, 448 (1976), rather than a clear, candid insight

into management’s judgment.

This rule would impose significant burdens on

regulated entities subject to Item 303 disclosures. But

even over-disclosure may not fully protect issuers from

event-driven litigation that exploits the Ninth

Circuit’s amorphous standard to create liability from

hindsight. This Court’s intervention is warranted to

restore the balanced disclosure requirements intended

by Item 303.

A. The Ninth Circuit Abandons the Careful

Limitations Drawn by the Fifth and

Eleventh Circuits.

The decision below conflicts with decisions of the

Fifth and Eleventh Circuits. Those courts recognize

that Item 303 requires disclosure of known interim

data likely to have a material impact where: (1) “an

observed pattern accurately reflects persistent

conditions of the particular registrant’s business

environment,” or (2) where interim financial metrics

“suddenly and significantly declined” from the

previous reported period. Oxford Asset Mgmt., Ltd. v.

Jaharis, 297 F.3d 1182, 1191–92 (11th Cir. 2002); see

also Kapps v. Torch Offshore, Inc., 379 F.3d 207, 217–

19 (5th Cir. 2004). Grounded in the text of Item 303,

these approaches tether disclosure to durability,

reliability, and significance.

Item 303 focuses on significant patterns, not volatile

fluctuations—even when the change is “sudden.” As

the court explained in Oxford, disclosure may be

required where a metric was “booming . . . for the

previous several reported quarters,” then abruptly

reversed, if this reversal would render the prior results

misleading. 297 F.3d at 1192. But an abrupt change

13

alone

does

not

require

disclosure

absent

representations or implications that the past

performance would continue. See Kapps, 379 F.3d at

221. Thus, courts recognize that intra-quarter

information is “necessarily incomplete” and avoid

requiring premature disclosure of expectedly volatile

metrics. Id. (internal citation omitted). In Kapps, for

example, a 60% decline in natural gas prices over 5.5

months did not require disclosure under Item 303

because it provided “no complete picture,” given recent

price volatility. Id. at 218, 221. This limitation is

important

because

incomplete

information

prematurely disclosed can disrupt markets by causing

overreaction. See, e.g., Higginbotham v. Baxter Int’l,

Inc., 495 F.3d 753 (7th Cir. 2007) (describing market

reaction after initial announcement of problem,

followed by rebound after more complete information

of problem’s scale disclosed to market).

The Ninth Circuit, by contrast, expressly disavowed

any requirement of “some minimum duration” or

“persistence over time,” removing the limitation that

ties the duty to disclose under Item 303 to those

matters which management considers impactful. Pet.

App. A at 35a. The decision below seemingly requires

by-the-minute updates to disclosures before

publication, lest issuers risk devastating liability over

the omission of incomplete information.

B. The Ninth Circuit Imposes an Atextual

Quantification Mandate.

Beyond expanding disclosure triggers to include

incomplete information about minor fluctuations, the

Ninth Circuit went even further to require

“quantification” of the potential impacts of such events

and uncertainties, even absent duration or

persistence, subject only to the vague qualifier “to the

extent reasonably practicable,” (Pet. App. A at 37a)—

14

an empty caveat that invites hindsight-driven

scrutiny. The court below derived this requirement

from a single illustrative example in the 1989 Release,

while ignoring the same guidance’s recognition that

forward-looking impact estimates may be optional.

Compare id. at 30a (citing 1989 Release, 1989 WL

1092885, at *6) with 1989 Release, 1989 WL 1092885,

at *4 (“anticipating a less predictable impact of a

known event, trend, or uncertainty” is an “optional

forward-looking disclosure[],” not an Item 303

requirement) (emphasis in original omitted).

The Ninth Circuit then failed to elaborate on the new

rule it birthed, providing no meaningful detail that

would allow issuers to determine ex ante what

quantification the court will deem “reasonably

practicable” or what level of “granular information” is

necessary.

C. The Ninth Circuit’s Item 303 Holding

Muddies a Complicated Regulatory

Regime.

The Ninth Circuit’s rule makes an already confusing

and burdensome set of regulatory obligations into

something wholly opaque. Long before the decision

below, it was widely recognized that Item 303 is no

paragon of clarity. See Mark S. Croft, MD&A: The

Tightrope of Disclosure, 45 S.C. L. Rev. 477, 478 (1994)

(“Item 303 . . . MD & A disclosure requirements are

open-ended and exceedingly complex.”). By requiring

management to identify relevant trends or

uncertainties, assess their likelihood, and evaluate

whether their consequences would materially affect

financial conditions or results of operations, the

regulation calls for an exceptionally difficult,

predictive determination of whether forward-looking

information crosses the line from optional to

mandatory. See Suzanne J. Romajas, Note, The Duty

15

to Disclose Forward-Looking Information: A Look at

the Future of MD&A, 61 Fordham L. Rev. S245, S286

(1993) (“[T]he distinction that the SEC has drawn

between required and optional disclosures is so subtle

that corporations and courts alike find Item 303 of

Regulation S-K difficult to apply.”).

That was before the decision below expanded Item

303 to require disclosure and quantification of intraquarter information. The SEC’s annual and quarterly

disclosure framework that courts have long applied, at

the very least, sought a balance between frequency

and completeness. 3 The decision below abandons that

attempt at equilibrium. The Ninth Circuit’s new

standard will require near-instant disclosure and

extrapolation of a limitless universe of potentially

impactful events and uncertainties—guaranteeing

that investors will be flooded with voluminous and

tenuous projections rather than benefiting from a

concise narrative statement of management’s

reasoned judgment as Item 303 intends.

III. THE COURT SHOULD GRANT REVIEW TO

PREVENT SIGNIFICANT DISRUPTION OF

CAPITAL MARKETS.

Federal securities laws operate against the backdrop

of a compelling national interest in uniform and

predictable disclosure standards. As this Court has

recognized, “[t]he magnitude of the federal interest in

protecting the integrity and efficient operation of the

market for nationally traded securities cannot be

3 Notably,

the SEC is reconsidering its quarterly regime in

favor of a less demanding semi-annual cadence. See Statement

of James Moloney, Director, Coming Attractions From the

Division

of

Corporation

Finance

(Feb.

13,

2026)

[https://perma.cc/G3KG-YQX9] (previewing rule proposal

allowing semi-annual reporting).

16

overstated.” Merrill Lynch, Pierce, Fenner & Smith

Inc. v. Dabit, 547 U.S. 71, 78 (2006). The Ninth

Circuit’s decision—by expanding Section 11 liability

and Item 303’s disclosure obligations—threatens that

uniformity. The Ninth Circuit’s role as one of the

country’s most significant jurisdictions for public

offerings and securities litigation means that the

consequences will be felt far beyond the parties to this

case.

A. The Ninth Circuit’s Section 11 Liability

Standard and Item 303 Reporting

Requirements

Have

Material

Consequences

for

the

Business

Community.

The Ninth Circuit is a key jurisdiction for the public

securities market. Every year, hundreds of companies

based in the Ninth Circuit attempt to go public, and

thousands of companies in the Ninth Circuit issue

quarterly reports. In the twelve months ending June

30, 2025, California alone accounted for 489 registered

public offerings—more than any other state—and

more offerings occurred within the Ninth Circuit than

in any other circuit. See SEC, Staff Report from the

Office of the Advocate for Small Business Capital

Formation, at 56 (2025) [https://perma.cc/DN5XA73E].

The Ninth Circuit also consistently ranks among the

leading venues for securities class actions. It sees on

average 51 non-M&A securities class actions filed

annually. See 2025 Year in Review, Securities Class

Action Filings, CORNERSTONE RESEARCH at 22 (2026)

[https://perma.cc/KZW7-47JD]. This is nearly equal to

the Second Circuit (56 actions annually) and more

than any other circuit by far—in third place, the Third

Circuit sees an average of 18 such cases. Id.

17

The Ninth Circuit’s departure from the text of the

securities laws and from other circuits’ limiting

principles will therefore shape the conduct of a

substantial share of public companies and market

participants across the country. Absent this Court’s

review, issuers operating in the nation’s largest

markets will face a materially different and more

uncertain liability regime.

1.

The Ninth Circuit’s Holding Will

Increase Over-Disclosure.

This Court has warned that overly expansive

disclosure requirements can harm investors by

overloading them with “an avalanche of trivial

information”

that

undermines

“informed

decisionmaking.” TSC Indus., 426 U.S. at 448–49; see

also, generally Jackvony v. RIHT Fin. Corp., 873 F.2d

411, 415 (1st Cir. 1989) (Breyer, J.) (disclosure of

immaterial information may “more likely confuse,

than inform, the marketplace”). The Ninth Circuit’s

misreading of Section 11 and Item 303 will require

issuers to burden investors with less reliable intraquarter information, including one-off “events” that

may be irrelevant and hypothetical “uncertainties”

that may ultimately never materialize.

The Ninth Circuit’s holding will also necessarily

lower the quality of disclosures.

It encourages

corporate officers to include more speculation about

increasingly remote contingencies because of the risk

that a decision to omit a particular “event” or

“uncertainty” may be subject to second-guessing by a

private plaintiff and, ultimately, a jury operating with

hindsight. And the new Section 11 “misleading”

standard requires disclosure of “incomplete” intraquarter information for every potentially material fact

related to a prior statement, regardless of whether its

omission would be misleading.

18

2.

Over-Disclosure and Increased

Litigation Risk Will Raise the Cost of

an IPO.

Needless to say, excessive disclosure requirements

increase the cost of issuing securities and going public.

A constant, ill-defined duty to update disclosures

imposes a substantial and unwieldy burden on

businesses. In one study of 25 large, well-known

companies, the number of pages devoted to MD&A

disclosures increased 300% between 1972 and 1992—

the period during which Item 303 took shape. Ernst &

Young, To the Point: Now Is the Time to Address

Disclosure Overload, at 1 (June 21, 2012)

[https://perma.cc/4X5N-LNLG]. MD&A disclosures

went from an average of three pages in 1972 (before

Item 303 was promulgated) to 48 pages in 2011. Id. at

2. The Ninth Circuit’s ruling only promises to continue

this burdensome trend, further increasing the costs on

businesses attempting in good faith to comply and

raise capital.

That cost is further increased by the added risk of

litigation, which has already discouraged public

offerings altogether. IPOs are plagued by securities

litigation—often driven by a newsworthy event—a

trend that has worsened since the 2008 financial

crisis. See 2019 Year in Review, Securities Class

Action Filings, CORNERSTONE RESEARCH at 29 (2020)

[https://perma.cc/W8S8-RJMW] (describing rise in

post-IPO litigation). This landscape has contributed

to a decades-long decline in the number of publicly

traded companies, as private companies can avoid

litigation risks by relying on private capital markets

to which the common investor does not have access.

See Paul S. Atkins, Chairman of the SEC, Revitalizing

America’s Markets at 250 (Dec. 2, 2025)

[https://perma.cc/Z56B-3NT7] (observing that the

19

number of public companies fell by roughly 40% from

the mid-1990s until 2025); Jay R. Ritter, Initial Public

Offerings: Updated Long-run Statistics (Feb. 18, 2026)

[https://perma.cc/2XR8-LBXL] (analyzing the number

of IPOs per year).

When companies do choose to go public, riskier legal

environments increase transaction costs and reduce

market efficiency.

See Yangyang Chen et al.,

Litigation Risk and IPO Underpricing: Evidence from

Federal Judge Ideology, REV ACCOUNT STUD (2025)

[https://perma.cc/A84M-N392]. The decision below

raises litigation risk by watering down what plaintiffs

must plead to impose burdensome discovery. 4 The

Ninth Circuit’s indeterminate standards invite

hindsight-driven litigation about what may have been

material or “reasonably practicable” for a company to

disclose. And given the difficulties of “quantification,”

particularly of one-off events and uncertainties, the

new disclosure standards open the door to securities

claims anytime good faith “quantification” errs one

way or another.

The Ninth Circuit’s ruling, if allowed to stand, will

only increase the costs and risks associated with

4 The Private Securities Litigation Reform Act of 1995 stays

discovery pending resolution of a motion to dismiss in securities

cases, but materiality is a low barrier to clear at the pleading

stage because it is considered a fact-bound inquiry generally

inappropriate for resolution at the dismissal stage. See In re

Morgan Stanley Info. Fund Sec. Litig., 592 F.3d 347, 360 (2d Cir.

2010) (dismissal on materiality grounds only where “so obviously

unimportant . . . that reasonable minds could not differ”

(quotation omitted)); Ieradi v. Mylan Lab’ys, Inc., 230 F.3d 594,

599 (3d Cir. 2000) (same); Siracusano v. Matrixx Initiatives, Inc.,

585 F.3d 1167, 1178 (9th Cir. 2009) (materiality “peculiarly

within the province of the trier of fact”), aff'd, 563 U.S. 27 (2011);

TSC Indus., 426 U.S. at 450 (materiality questions are “peculiarly

ones for the trier of fact”).

20

securities issuance, therefore

inefficiency in capital markets.

3.

introducing

more

These Impacts Contravene the SEC’s

Intended Regulatory Regime.

The SEC Chairman recently described the impact of

decades of over-regulation: “the path to public

ownership has become narrower, costlier, and overly

burdened with rules that often create more friction

than benefit.” Paul S. Atkins, Chairman of the SEC,

Revitalizing America’s Markets at 250 (Dec. 2, 2025)

[https://perma.cc/Z56B-3NT7].

In light of this negative trend, the SEC has

undertaken to clarify and simplify its disclosure

requirements. See, e.g., SEC, Release No. 33-10890,

86 FR 2080 (Feb. 10, 2021) (“adopting amendments to

modernize, simplify, and enhance certain financial

disclosure requirements in Regulation S-K” while

“simplifying compliance efforts for registrants”); Paul

S. Atkins, Chairman of the SEC, Statement on

Reforming Regulation S-K, SEC (Jan. 13, 2026)

[https://perma.cc/Z56B-3NT7]

(announcing

a

“comprehensive review of Regulation S-K” in light of

the “myriad requirements” imposed on issuers); SEC,

Statement of James Moloney, Director, Coming

Attractions From the Division of Corporation Finance

(Feb. 13, 2026) [https://perma.cc/G3KG-YQX9]

(previewing rule proposal allowing semi-annual

reporting).

The decision below moves in the opposite direction,

layering atextual and indeterminate disclosure

demands onto an already complex regime.

21

B. The

Ninth

Circuit’s

Decision

Is

Unworkable for Companies Attempting

in Good Faith to Monitor and Report

Information to Investors.

When companies and purchasers cannot properly

assess risk ex ante, capital markets are disrupted. As

such, securities liability is “an area that demands

certainty and predictability.” Cent. Bank of Denver,

N.A. v. First Interstate Bank of Denver, N.A., 511 U.S.

164, 188 (1994) (quoting Pinter v. Dahl, 486 U.S. 622,

652 (1988)). The Ninth Circuit’s decision does the

opposite, sowing confusion about what the securities

laws require and exposing issuers to unpredictable ex

post judgments.

The opinion leaves open a number of difficult

questions for businesses to operationalize, or else risk

liability: How significant must a transitory “event” be

to require Item 303 disclosure? What if the “trend”

develops or changes by the time the disclosure is

drafted and ready for publishing? How should a

company quantify “uncertainties” or trends of some

undefined minimum duration? What intra-quarter

results are “material,” given that all interim results

(whether showing a decline, flatline, or growth) may

be interesting to an investor? What happens to

companies whose performance metrics are not linear

within a quarter? What if interim data is not

indicative of end-of-quarter results or sustained trends

or is otherwise less reliable? Are companies now

required to keep reportable interim data?

The decision below disrupts the policy balance the

SEC has established and leaves management without

a basis for effectively exercising judgment to

determine what must be disclosed. This Court’s

intervention is warranted to restore clear, nationwide

liability and disclosure standards.

22

CONCLUSION

For the foregoing reasons and those set forth by

Petitioners, the petition for a writ of certiorari should

be granted.

Respectfully submitted,

KEVIN CARROLL

SECURITIES INDUSTRY AND

FINANCIAL MARKETS

ASSOCIATION

1099 New York Ave., NW

WASHINGTON, D.C. 20001

EAMON P. JOYCE*

FRANCESCA BRODY

AUSJIA PERLOW

BRANDON NYE

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-8555

JANET GALERIA

AUDREY DOS SANTOS

U.S. CHAMBER

LITIGATION CENTER

1615 H Street NW

Washington, DC 20062

(202) 463-5747

MATTHEW J. DOLAN

SIDLEY AUSTIN LLP

1001 Page Mill Road

Building 1

Palo Alto, CA 94304

(650) 565-7000

Counsel for Amici Curiae

March 11, 2026

* Counsel of Record