On May 7, 2014, the Fourth Circuit held that the Supreme Court’s decision in Janus Capital Group, Inc, v. First Derivative Traders, 131 S. Ct. 2296 (2011), does not apply to criminal prosecutions under Rule 10b-5.  Prousalis v. Moore, No. 13-6814 (4th Cir. May 7, 2014).  In Janus, the Supreme Court held, in the context of a private shareholder suit, that in order for there to be liability under Rule 10b-5, a defendant must “make” an untrue statement of material fact.  The Janus Court stated that “the maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether to communicate it. . . . One who prepares or publishes a statement on behalf of another is not its maker.”  In this case, the petitioner plead guilty to preparing SEC filings associated with his client’s initial public offering.  The SEC filings prepared by petitioner, yet signed and authorized by his client, failed to disclose the proper use of the IPO proceeds.  After the Janus decision, the petitioner sought to overturn his prior guilty plea on the grounds that under Janus, the conduct he pleaded guilty to was not a crime, as he was not the “maker” of the false and misleading statements contained in the SEC filings.  In rejecting the petitioner’s arguments, the Fourth Circuit limited Janus’s application to only those Rule 10b-5 cases where plaintiffs only have an implied legal right of action.  The Fourth Circuit, unlike the Supreme Court in Janus, declined the petitioners’ invitation to engage in a textual analysis of Rule 10b-5, reasoning that to do so “would render the Supreme Court’s discussion of private right of action largely superfluous.”