John recently blogged about one notable group missing from the Slack direct listing appeal—the SEC. If you’re into the inside baseball here, Cydney Posner’s Cooley PubCo blog thoroughly and compellingly covers the oral arguments, including how some of the Justices may be leaning. It seems that the SEC’s absence was giving SCOTUS some heartburn and, to the extent the SEC struggled with this case, it was in good company:
When it came to considering the practical impact of any decision, the Justices seemed, to some extent, caught between Scylla and Charybdis—overturning the 9th Circuit to mandate tracing to the registration statement, as Slack requested, could mean allowing a mechanism to avoid Section 11 liability completely; taking the broad approach that Pirani advocated (and the 9th Circuit took) could mean substantially expanding and extending liability. The challenge was how to navigate those waters?
. . . Justice Sotomayor said that she had “read some commentators suggesting that the [SEC] is having trouble with this case and doesn’t know what to do.” Chief Justice Roberts added that they “[m]ay not be the only one.”
– Meredith Ervine