NAM has also filed a brief on behalf of Respondents in Stoneridge. The Brief is posted on the DU Corporate Governance web site. NAM focuses among other things on the "in connection with" requirement of Rule 10b-5. As the brief notes:

• "Petitioner here alleges merely that Respondents agreed to sell set-top boxes to Charter at inflated prices, to purchase advertising from Charter using the money it received from the inflated prices and to create new, backdated documents to reflect this agreement. Completion of these transactions by Respondents in no way required or depended upon any purchase or sale of Charter securities. In addition, as Petitioner concedes, Respondents made no misrepresentations to anyone, let alone to Charter shareholders. Respondents owed no fiduciary duty to Charter investors and did not trade in Charter securities. Consequently, Petitioner’s allegations about Respondents do not involve either the type of conduct or the relationship to the securities markets necessary to fulfill the “in connection with” requirement of Section 10(b)."

It is a fair point.  Companies merely engaging in business activities (even if somehow improper) ought not to have to confront the risk of a securities law violation.  It is, in the end, a matter of line drawing.  In Simpson, the 9th Circuit drew the line by concluding that primary liability would only extend to those that engaged in a transaction, the principal purpose of which was to create a false appearance of fact.  In other words: "It is not enough that a transaction in which a defendant was involved had a deceptive purpose and effect; the defendant's own conduct contributing to the transaction or overall scheme must have had a deceptive purpose and effect."  452 F.3d at 1048.  We shall see which line the Supreme Court prefers.