Rule 10b-6The Scienter Requirement Under Rule 10b-6
Fred N. Gerard and Michael Hirschfeld, 46(3): 777–96 (May 1991)
SEC rule 10b-6 regulates trading by participants in a distribution of securities. This Article rejects the notion that the rule permits the imposition of absolute or per se liability, arguing that, because of its uniquely antimanipulative focus, the rule requires a showing of scienter—in the form of an actual intent to interfere with the market as an independent pricing mechanism—in order to make out a violation. As promulgated under section 10(b) of the Exchange Act, the rule cannot exceed the authority conferred by that provision, which the Supreme Court has found to require scienter. The addition in 1987 of certain other legislative bases for the rule did not obviate the scienter requirement.