主题：【现炒现卖】之美国对外商直接投资的监管 -- 南方有嘉木

(3) Section 317.3(a): General Anti-Fraud Provision

This section doesn’t require a specific intent to manipulate the market, which, in the Commission’s opinion, could permit harmful conduct to escape coverage under the Rule, simply because the actor did not intend to manipulate the market. Thus, to violate this section, a person must engage in the proscribed conduct “knowing” that it is fraudulent or deceptive. For example, a trader’s state of mind must encompass more than just carrying out the ministerial function of transmitting false information to a price reporting service. Rather, there must be evidence that the trader knew or must have known that the information transmitted was false. Also, the Commission has determined that establishing a violation of this section requires, at a minimum, evidence that the defendant’s conduct presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.

The materiality requirement in this section treats a fact as material if there was a substantial likelihood that a reasonable market participant would consider it important in making a decision to transact because the material fact significantly altered the total mix of information available. Examples might include false representations to the government about a company’s current inventory or refinery operating status, or false representations about the price or volumes of past transactions to a private price reporting service.

(4) Section 317.3(b): Omission of Material Information Provision

First, this section contains a stricter scienter standard than does Section 317.3(a). This scienter standard requires that the alleged violator specifically intend to mislead by means of a material omission rather than simply being aware of the potential risk posed by his or her conduct; that is, the actor must have intentionally omitted information from a statement with the further intent to make the statement misleading.

Second, this section contains a limiting proviso not found in Section (a). The proviso requires that the wrongful conduct at issue distort or be likely to distort market conditions. The limiting proviso provides businesses with the assurance that omissions occurring in the context of routine business activity are not actionable unless they otherwise undermine market participants’ ability to rely on the integrity of market date.

Moreover, this section does not impose an affirmative duty to disclose information or a duty to correct or update information. Rather, it applies only if a covered entity voluntarily provides information – or is compelled provides information by statute, order, or regulation – but then intentionally fails to disclose a material fact that makes the information misleading. This section therefore does not require businesses to provide commercially sensitive information to any other person absent a pre-existing legal obligation to do so. Similarly, it is not a violation to withhold market intelligence that a company gathered about market conditions. In addition, the Commission does not generally intend that this section reach routine bilateral commercial negotiations, which are unlikely to inject false information into the market process.

This section prohibits only those material omissions that can be expected to manipulate a wholesale petroleum market, and gives market participants the certainty that statements containing material omissions will not be challenges if they do not adversely threaten the reliability of data in a broader wholesale petroleum market. However, it must be pointed out that to establish a section (b) violation does not require proof of a specific price effect. Rather, the phrase “distort or is likely to distort market conditions” speaks only to the ability of market participants to rely on the integrity of market data in making purchase and sales decisions. So, to establish a violation requires showing that the character and likely market reach of such false or misleading information is likely to make market data less reliable. This evidentiary burden is lower than proving a specific price effect or any other specific effect on a market metric. For example, intentionally omitting material information in statements in order to mislead government officials during a national emergency would violate section (b) because such conduct can be expected to threaten the integrity of the data within the market at large and on which market participants rely.

6. Miscellaneous

The Rule contains a standard preemption provision, making it clear that the Commission does not intend to preempt the laws of any state or local government, except to the extent of any conflict.

The Rule also contains a standard severability provision, making clear that if any part of the Rule is held invalid by a court, the rest of the Rule will remain in effect.