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G. UPHOLDING THE PLAIN LANGUAGE OF SECTION 10(b) AND RULE 10b-5 WILL NOT IMPAIR LEGITIMATE BUSINESS
In reaching a conclusion contrary to the plain language of Section 10(b) and Rule 10b-5, the Eighth Circuit adverted to the potential consequences to the business community. These concerns are legitimate but do not support the Eighth Circuit’s decision. The interpretation of Section 10(b) and Rule 10b-5 by the Court and the lower courts, as well as the amendments to the federal securities laws through the PSLRA and SLUSA, insure that legitimate business conduct will not become subject to liability. Only conduct undertaken with the intent to defraud and as part of a scheme will give rise to liability. No business will suffer undue expense or burden because of the heightened pleading standards of the PSLRA which require that a plaintiff plead specific facts giving rise to a strong inference of scienter before an action may go forward. 15 U.S.C. § 78u-4(b)(2).
