Pinter v. Dahl

1 Petitioners are Pinter, individually and d.b.a. Black Gold Oil Company, Pinter Energy Company, and Pinter Oil Company. Throughout this opinion, we often refer to petitioners collectively as “Pinter.” Respondents are Maurice Dahl, Gary Clark, W. Grantham, Robert J. Daniele, Charles Dahl, Dowayne C. Bockman, Ray Dilbeck, Richard Koon, Art Overgaard, Jack Yeager, Accra Tronics Seals Corp., and Aaron Heller. These are Dahl’s brother, his accountant, his partner in a construction business, the bank officer handling his construction loans, his construction-business insurance agent, a business owned by a longtime friend, and other business associates and friends of Maurice Dahl. See App. 101-104.

2 The venture included still others who were either interested in additional ventures organized by Pinter or were new investors who met Pinter through sources other than Dahl. Those investors are not parties to this litigation.

3 Specifically, each document recited: “WHEREAS the parties constitute a predetermined and limited group of sophisticated and knowledgeable well informed investors who desire to arrange for participation in an oil and/or gas drilling venture as an investment and do declare that it is not for the purpose of reselling their interest therein. (These participating interests are being sold without the benefit of registration under the Securities Act of 1933, as amended, and on reb-anee of rule 146 thereunder).” App. 95. See also n. 4, infra. Rule 146 was rescinded, effective June 30,1982, by SEC Release No. 33-6389, 47 Fed. Reg. 11251 (1982), and superseded by provisions of Regulation D, 17 CFR, p. 425 (1987).

4 Section 12 provides: “Any person who — (1) offers or sells a security in violation of section [5] . . . shall be liable to the person purchasing such security from him,, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.” Section 5, 15 U. S. C. § 77e, referred to in § 12, states, in pertinent part, that if a security is unregistered, it is unlawful for a person to sell or deliver the security in interstate commerce. A number of exemptions, however, enable an issuer to avoid the registration requirement of the Securities Act. One of these, § 4(2), 15 U. S. C. §77d(2), commonly referred to as the “private-offering” exemption, relieves from registration “transactions by an issuer not involving any public offering.” See SEC v. Ralston Purina Co., 346 U. S. 119 (1953) (establishing criteria for determining whether an offering fits the private-offering exemption). In 1974, the Commission sought to provide “objective standards” under §4(2) by adopting Rule 146. Rule 146 — Transactions by an Issuer Deemed Not to Involve Any Public Offering, Securities Act Rel. No. 33-5487 (effective June 10, 1974), 39 Fed. Reg. 15261 (1974), CCH Fed. See. L. Rep. ¶ 2710, p. 2902. It has been said that the Rule, which is now superseded by provisions of Regulation D, see n. 3, supra, provided that a transaction by an issuer would not be deemed to involve a public offering within the meaning of § 4(2) if it was part of an offering that met the following conditions: “[T]he offering must 1) not be made by any means or form of general solicitation or advertising; 2) be made only to those persons whom the issuer has reasonable grounds to believe are of knowledge and experience which would enable them to evaluate the merits of the issue or who are financially able to bear the risk; 3) be made only to those persons who have access to the same kind of information as would be contained in a registration statement. Under this rule, the issuer must have reasonable grounds to believe, and must believe, that there are no more than thirty-five purchasers *628 from the issuer.” Mary S. Krech Trust v. Lakes Apartments, 642 F. 2d 98 , 101 (CA5 1981). See 3 H. Bloomenthal, Securities and Federal Corporate Law §4.05[2] (1981 ed.). Pinter sought to take advantage of this “safe harbor” in issuing the oil and gas interests involved in this case. In addition to their § 12(1) claim, respondents alleged that Pinter made material misrepresentations regarding the oil and gas properties and his oil experience, thereby entitling them to damages under § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891 , 15 U. S. C. § 78j(b), and SEC Rule 10b-5 thereunder, 17 CFR §240 .10b-5 (1987), and to rescission under § 12(2) of the Securities Act, 15 U. S. C. § 77i(2). Respondents also asserted pendent claims under Texas and California law. None of these additional claims is before us.

5 Pinter apparently meant to contend that Dahl was responsible for the loss of the private-offering exemption from registration under § 4(2) and Rule 146, see n. 4, supra, although Pinter did not make this assertion explicit in his pleadings. Cf. Second Amended Proposed Findings of Fact and Conclusions of Law of Defendants Billy J. “B. J.” Pinter, et al., App. 85-86 (claiming that petitioners had met the requirements of the private-offering exemption).

6 Pinter contended that all the respondents should be estopped from recovery because of Dahl’s fraudulent conduct. He asserted his in pari de-licto defense solely against Dahl.

7 Having reached this conclusion, the District Court found it unnecessary to consider respondents’ § 12(2) claim. App. to Pet. for Cert. 37-38. The court rejected respondents’ claim under § 10(b) and Rule 10b-5. App. to Pet. for Cert. a-37.

8 The court also rejected Pinter’s estoppel defense. 787 F. 2d, at 988-989 . That holding is not challenged in this Court. We express no view as to whether this equitable defense is available in a § 12(1) action.

9 Because none of the other plaintiffs sought recovery from Dahl, Dahl’s liability on their claims is at issue only if contribution is available to Pinter. The Court of Appeals addressed Pinter’s contention that Dahl was liable as a § 12(1) seller and thus should be accountable to Pinter in contribution for the amounts awarded to the other plaintiffs. 787 F. 2d, at 987 . It is not entirely clear how this claim was raised below. Pinter’s pleadings do not state an explicit cause of action for contribution against Dahl, although Pinter did move, albeit unsuccessfully, to realign Dahl as a third-party defendant, based on Pinter’s assertion that Dahl was a “seller” of the unregistered securities to the remaining plaintiffs and had made the allegedly actionable misrepresentations to them in connection with the sales. See 1 Record 164-165, 189. Presumably, the Court of Appeals construed Pinter’s affirmative defense for contributory fault and his incorporation of this defense into his counterclaims, as effectively seeking contribution. Unlike § 11 of the Securities Act, see 15 U. S. C. § 77k(f), § 12 does not expressly provide for contribution. The Court of Appeals did not reach the question whether Pinter is entitled to contribution under § 12(1) because it found that Dahl was not a seller for purposes of § 12(1), and therefore would not be the proper subject of a contribution claim. The parties have not raised or addressed the contribution issue before this Court, and we express no view as to whether a right of contribution exists under §12(1).

10 The dissent addressed the “seller” issue in the context of Pinter’s asserted in pari delicto defense. In its view, Dahl’s role as a seller of the unregistered securities “put him in the same boat as Pinter,” making him vulnerable to that defense. 787 F. 2d, at 991 . The dissent also indicated that it “would go further” and hold that “Pinter is entitled to contribution from Dahl since Dahl is at least equally culpable for the sale to the other plaintiffs.” Id., at 995, n. 5 .

11 The Court of Appeals found that this conclusion was compelled by its decision in Henderson v. Hayden, Stone Inc., 461 F. 2d 1069 (1972). See 787 F. 2d, at 987-988 . That case, we note, does not discuss the in pari delicto defense. Accord, 794 F. 2d 1016 , 1017 (1986) (opinion dissenting from denial of rehearing of the present case en banc).

12 Among the Courts of Appeals that have addressed the issue, the Fifth Circuit is alone in concluding that the defense is unavailable. The defense, however, rarely has succeeded on the facts of any particular case. See, e. g., Lawler v. Gilliam, 569 F. 2d 1283 , 1294 (CA4 1978); Woolf v. S. D. Cohn & Co., 515 F. 2d 591 , 604 (CA5 1975), vacated and remanded on other grounds, 426 U. S. 944 (1976); Malamphy v. Real-Tex Enterprises, Inc., 527 F. 2d 978 (CA4 1975); Katz v. Amos Treat & Co., 411 F. 2d 1046 , 1054 (CA2 1969); Can-Am Petroleum Co. v. Beck, 331 F. 2d 371 , 373-374 (CA10 1964). Commentators also have suggested that the defense should be available under proper circumstances in actions under § 12(1). See, e. g., Ruder, Multiple Defendants in Securities Law Fraud Cases: Aiding and Abetting, Conspiracy, In Pari Delicto, Indemnification, and Contribution, 120 U. Pa. L. Rev. 597 , 662-663 (1971-1972); Note, In Pari Delicto Under the Federal Securities Laws: Bateman Eichler, Hill Richards, Inc. v. Berner, 72 Cornell L. Rev. 345 , 359-362 (1987).

13 The panel dissent below expresséd concern that failure to provide the in pari delicto defense in these circumstances would allow sophisticated investors who purchase unregistered securities to place themselves in a no-lose situation. If the venture proves profitable, the buyer comes out ahead. If the investment goes bad, the buyer can sue to recover his investment in a § 12(1) action. See 787 F. 2d, at 995 . The statute, however, permits such maneuvers. See Shulman, Civil Liability and the Securities Act, 43 Yale L. J. 227 , 246-247 (1933) (Shulman); accord, L. Loss, Fundamentals of Securities Regulation 1003, n. 74 (2d ed. 1988) (Loss). Section 12(l)’s deterrent effect is achieved, to a great extent, by a provision allowing suits for a full year following sale. See 15 U. S. C. § 77m. Thus, the purchaser of unregistered securities may keep his securities and reap his profit if the securities perform well during the year, but rescind the sale if they do not. See, e. g., Straley v. Universal Uranium & Milling Corp., 289 F. 2d 370 (CA9 1961). Although this provision may appear to offend a sense of fair play, allowing the investor to sue, regardless of his knowledge of the violation when he purchased the securities, furthers the interest of the Securities Act: the seller then has strong incentive to comply with the registration disclosure provisions. These provisions are concerned with affording the unsophisticated investor information necessary to make a knowledgeable investment decision. Permitting the sophisticated investor to recover also serves to protect the unknowing and innocent investor.

14 Courts have discerned beneath the registration provisions the same broad policies as those furthered by the securities laws generally: protection of investors as a group, not as individuals, and the need for a healthy economy constantly purged by full disclosure. See, e. g., SEC v. North American Research & Development Corp., 280 F. Supp. 106 , 121 (SDNY 1968) (purpose of § 5 is to protect public investors through disclosure), aff’d in part and vacated in part on other grounds, 424 F. 2d 63 (CA2 1970). See generally, 1 Loss, Securities Regulation 178-179 (2d ed. 1961) (aim of registration provision is “ ‘to protect honest enterprise . . . ; to restore the confidence of the prospective investor . . . ; to bring into productive channels of industry and development capital which has grown timid . . . ; and to aid in providing employment and restoring buying and consumer power’”), quoting S. Rep. No. 47, 73d Cong., 1st Sess., 1 (1933).

15 The parties vigorously dispute whether Pinter has a valid defense under the in pari delicto doctrine. Pinter argues that Dahl was a “preeminent factor in the violations he seeks to redress. ” Brief for Petitioners 29. He maintains that the venture would not have been undertaken or, at least, completed, had it not been for Dahl’s involvement. According to Pinter, Dahl’s responsibility for causing the unlawful sales was at least substantially equal to his own. Nevertheless, Pinter-concedes that nothing in the record indicates whether Dahl was a participant in the decision not to register the securities, although Pinter would infer that Dahl was aware of the duty to register. See id., at 27. Dahl contends that his actions were not of equal fault to those of Pinter. He suggests that Pinter, as the issuer of the securities, was entirely responsible for the failure to register and to fulfill the requirements of Rule 146, although he points to no evidence in the record to support either position. Dahl further argues, in a conclusory fashion, that he was not a promoter of any of the securities in which his co-respondents invested. Finally, he asserts that he should be permitted to recover because “Pinter made the first step in the dissemination of unregistered securities and he will be more responsive to the deterrent pressure of potential sanctions.” Brief for Respondents 98.

16 In dictum, the Court of Appeals ventured that even if it were to apply the Bateman Eichler standard, Pinter would not be permitted to advance an in pari delicto defense against Dahl’s recovery. 787 F. 2d, at 989, n. 6 . Because the court did not have our delineation today of the proper inquiry regarding § 12(1) actions, and because we conclude that the District Court’s findings were insufficient to conduct this analysis, the Court of Appeals’ views on this point are not conclusive of the issue.

17 Even if the Court of Appeals were ultimately to conclude that Dahl’s actions bar his recovery against Pinter pursuant to the in pari delicto doctrine, that conclusion would not resolve the issue whether, based on Dahl’s actions as a “seller” under § 12(1), Dahl might be held liable for contribution as to the remaining investor-respondents’ claims against Pinter. We therefore are constrained to address, as did the Court of Appeals, whether Dahl is a “seller” for purposes of § 12(1).

18 Section 12 was adapted from common-law (or equitable) rescission, Loss, at 888, which provided for restoration of the status quo by requiring the buyer to return what he received from the seller. The statute, however, differs significantly from the source material. In particular, it permits the buyer who has disposed of the security to sue for damages — “the consideration paid for such security with interest thereon, less the amount of any income received thereon.” 15 U. S. C. §771 . This damages calculation results in what is the substantial equivalent of rescission. See *642 Randall v. Loftsgaarden, 478 U. S. 647 , 655-656 (1986); Loss, at 886; Shulman, 43 Yale L. J., at 244.

19 In addition, § 15 of the Securities Act, 15 U. S. C. § 77o, makes a “controlling person” liable for the § 12 liability of a controlled person. That provision is not at issue in this ease.

20 The “offers or sells” and the “purchasing such security from him” language that governs § 12(1) also governs § 12(2), which provides a securities purchaser with a similar reseissionary cause of action for misrepresentation. See 15 U. S. C. § 111 . Most courts and commentators have not defined the defendant class differently for purposes of the two provisions. See, e. g., Pharo v. Smith, 621 F. 2d 656 , 665-668, and nn. 6-8 (CA5 1980); Schneider, Section 12 of the Securities Act of 1933: The Privity Requirement in the Contemporary Securities Law Perspective, 51 Tenn. L. Rev. 235 , 261, and nn. 144 and 145 (1983-1984). See also Schillner v. H. Vaughan Clarke & Co., 134 F. 2d 875 , 878 (CA2 1943) (“Clearly the word [sell] has the same meaning in subdivision (2) as in subdivision (1) of section 12”). The question whether anyone beyond the transferor of title, or immediate vendor, may be deemed a seller for purposes of § 12 has been litigated in actions under both § 12(1) and § 12(2). Decisions under § 12(2) addressing the “seller” question are thus relevant to the issue presented to us in this case, and, to that extent, we discuss them here. Nevertheless, this case does not present, nor do we take a position on, the scope of a statutory seller for purposes of § 12(2).

21 One important consequence of this provision is that § 12(1) imposes liability on only the buyer’s immediate seller; remote purchasers are precluded from bringing actions against remote sellers. Thus, a buyer cannot recover against his seller’s seller. Loss, at 1023-1024; Douglas & Bates, 43 Yale L. J., at 177.

22 It is noteworthy that in 1940 Congress considered a proposal that would have excluded the solicitation clause from the definition of “sell” in §2(3). See S. 3985, 76th Cong., 3d Sess., 1-2 (1940), as introduced, 86 Cong. Rec. 6026 (1940). This amendment clearly would have reduced the meaning of the term “sell” to transferring title for value and would have eliminated the potential for liability of brokers or other persons soliciting a sale of securities. The proposal was not adopted.

23 Those commentators who argue that § 12 confines seller status to the transferor maintain that the section’s provision of rescissionary relief supports their conclusion. E. g., Abrams, 15 Ford. Urban L. J., at 924. There is authority at common law, however, for granting a plaintiff rescission against a defendant who was not a party to the contract in question, in particular, against the agent of the vendor. See, e. g., Keskal v. Modrakowski, 249 N. Y. 406 , 408, 164 N. E. 333 (1928); Peterson v. McManus, 187 Iowa 522 , 545-549, 172 N. W. 460 , 468-470 (1919). Indeed, there is nothing incongruous about forcing a broker or other solicitor to assume ownership of the securities. When rescission is predicated on fraud, rather than based on contract theory, privity is not essential. Loss, at 1017, quoting Gordon v. Burr, 506 F. 2d 1080 , 1085 (CA2 1974) (“[A]s *648 between the innocent purchaser and the wrongdoer who, though not a privy to the fraudulent contract, nonetheless induced the victim to make the purchase, equity requires the wrongdoer to restore the victim to the status quo”). In any event, there is no reason to think that Congress wanted to bind itself to the common-law notion of the circumstances in which rescission is an appropriate remedy. The Court, in the context of § 12(2), has noted that Congress enabled investors to demand rescission upon tender of the securities to the defendant, in part because of the additional measure of deterrence provided by rescission as compared to a purely compensatory measure of damages. Randall v. Loftsgaarden, 478 U. S., at 659 . Thus, we may infer that Congress, in order to effectuate its goals, chose to impose this relief on any defendant it classified as a statutory seller, regardless of the fact that such imposition was somewhat inconsistent with the use of rescission at common law. Congress chose rescission for its effects; there is no indication that Congress employed the remedy for its delineation of potential defendants.

24 The Fifth Circuit’s test is only one of several approaches that have emerged in expanding § 12 liability beyond the security titleholder. See generally O’Hara, Erosion of the Privity Requirement in Section 12(2) of the Securities Act of 1933: The Expanded Meaning of Seller, 31 UCLA L. Rev. 921 (1983-1984); Rapp, Expanded Liability Under Section 12 of the Securities Act: When Is a Seller Not a Seller?, 27 Case W. Res. L. Rev. 445 (1977); Note, Seller Liability Under Section 12(2) of the Securities Act of 1933: A Proximate Cause-Substantial Factor Approach Limited by a Duty of Inquiry, 36 Vand. L. Rev. 361 (1983); Comment, Attorneys and Participant Liability Under § 12(2) of the Securities Act of 1933, 1982 Ariz. S. L. J. 529. All but one of these theories reflect the courts’ views of who constitutes a § 12 seller. The remaining approach — the aiding and abetting theory — is actually a method by which courts create secondary liability in persons other than the statutory seller. See, e. g., Mayer v. Oil Field Systems Corp., 803 F. 2d 749 , 756 (CA2 1986); In re Caesars Palace *649 Securities Litigation, 360 F. Supp. 366 (SDNY 1973); see also Collins v. Signetics Corp., 605. F. 2d 110, 113-114 (CA3 1979) (leaving open whether aiding and abetting liability is available). Because this case deals exclusively with primary liability under § 12(1), we need not consider whether civil liability for aiding and abetting is appropriate under that section. Compare Comment, 1982 Ariz. S. L. J., at 550-577 (endorsing aiding and abetting liability under § 12(2)); Ruder, 120 U. Pa. L. Rev., at 620-644 (same), with Abrams, 15 Ford. Urban L. J., at 942-947 (disapproving secondary liability under § 12); O’Hara, 31 UCLA L. Rev., at 979-1002 (arguing that any form of participant liability, whether primary or secondary, is inappropriate under § 12(2)).

25 The substantial-factor test reflects a conviction that § 12 liability “must lie somewhere between the narrow view, which holds only the parties to the sale, and the too-liberal view which would hold all who remotely participated in the events leading up to the transaction.” Lennerth v. Mendenhall, 234 F. Supp. 59 , 65 (ND Ohio 1964). That court elected to “borrow a phrase from the law of negligence” and to premise liability on proximate cause. It imposed § 12(1) liability on the issuer that transferred title and the issuer’s president, vice president, and another employee. The Fifth Circuit adopted the proximate cause rationale in Hill York Corp. v. American International Franchises, Inc., 448 F. 2d 680 , 693 (1971) (holding that promoters of a nationwide franchising scheme were § 12 sellers), and two years later refined the doctrine to impose liability on defendants whose actions were a “ ‘substantial factor’ ” in causing a plaintiff’s purchases. See Lewis v. Walston & Co., 487 F. 2d 617 , 622 (CA5 1973) (affirming § 12(1) judgment against a brokerage firm and its representative who touted unregistered securities and arranged for their purchase by the plaintiff). A number of courts have followed that view. See Lawler v. Gilliam, 569 F. 2d, at 1287-1288 (§ 12(1)); Adalman v. Baker, Watts & Co., 807 F. 2d 359 , 363 (CA4 1986) (§ 12(2)); Davis v. Avco Financial Services, Inc., 739 F. 2d 1057 , 1067 (CA6 1984) (§ 12(2)), cert. denied, 470 U. S. 1005 (1985); Stokes v. Lokken, 644 F. 2d 779 , 785 (CA8 1981) (§ 12 generally); Foster v. Jesup & Lament Securities Co., 759 F. 2d 838 , 843-844 (CA11 1985) (§ 12 generally). The Ninth Circuit has shaped its own version of the test. See Anderson v. Aurotek, 774 F. 2d 927 , 930 (1985) (imposing § 12 liability on “ ‘partid- *650 pants’ whose acts are “both necessary to and a substantial factor in the sales transaction’ ”). See also SEC v. Rogers, 790 F. 2d 1450 , 1456 (CA9 1986) (explaining that the “necessary” and “substantial factor” prongs require separate showings: “The first prong . . . requires a defendant’s participation to be a ‘but for’ cause of the unlawful sale, and the second requires the participation to be more than ‘de minimis’ ”).

26 Congress knew of the collateral participation concept and employed it in the Securities Act and throughout its unified program of securities regulation. Liabilities and obligations expressly grounded in participation are found elsewhere in the Act, see, e. g., 15 U. S. C. § 77b(ll) (defining “underwriter,” who is liable under § 5, as including direct and indirect participants), and in the later Roosevelt administration securities Acts. For example, § 9 of the 1934 Act, passed by the same Congress that enacted the Securities Act, creates a private right of action that expressly imposes liability on participants. 15 U. S. C. §78i(e). See Abrams, 15 Ford. Urban L. J., at 925-937. Section 11 of the Securities Act, 15 U. S. C. §77k, lends strong support to the conclusion that Congress did not intend to extend § 12 primary liability to collateral participants in the unlawful securities sales transaction. That section provides an express cause of action for damages to a person acquiring securities pursuant to a registration statement that misstates or omits a material fact. Section 11(a) explicitly enumerates the various categories of persons involved in the registration process who are subject to suit under that section, including many who are participants in the activities leading up to the sale. There are no similar provisions in § 12, and *651 therefore we may conclude that Congress did not intend such persons to be defendants in § 12 actions.

27 For similar reasons, we reject the Commission’s suggestion that persons who “participate in soliciting the purchase” may be liable as statutory sellers. Brief for SEC as Amicus Curiae 22. The Commission relies on Katz v. Amos Treat & Co., 411 F. 2d 1046 (CA2 1969), where the court held that an attorney who had been “a party to the solicitation” of the plaintiff-purchaser was liable under § 12(1) because he had placed the brokerage firm for which he worked in a position “to tackle [the purchaser] for the money” owed on an investment he had made. Id., at 1053 . Although in Katz the attorney spoke directly to the plaintiff prior to the delivery of money in plaintiff’s investment, the “party to a solicitation” concept could easily embrace those who merely assist in another’s solicitation *652 efforts. See Schneider, 51 Tenn. L. Rev., at 273 (suggesting that the Katz approach allows courts to interpret solicitation activities “rather broadly”). It is difficult to. see more than a slight difference between this approach and the participation theory, which we have concluded does not comport with Congress’ intent.

28 Even in the tort law context, the substantial-factor test is recognized as inadequate for determining whether the defendant’s conduct was so significant and important a cause that the law should extend responsibility for the conduct to the consequences that occurred. See W. Prosser, Law of Torts § 42, pp. 244, 248 (4th ed. 1971).

29 We observe, however, that although every rule that extends liability serves on some level to protect investors, the substantial-factor test does not necessarily further the remedial purposes of § 12(1). Imposing a strict liability rescission remedy on those who are only tangentially involved with the sale might result in less and poorer information to investors, rather than more and better information. Because strict liability is involved, once a person became involved in the transaction, even peripherally, it would be impossible to avoid the risk of liability. There is little danger that this risk will deter true sellers from giving information, for they have no other way to go about their business. They also have the most control over conducting the sale in a manner that avoids liability. For those more attenuated to the sales transaction, however, who have far less, if any, control over the transaction, the harshness of § 12(1) might deter them from assisting. Particularly since the test produces unpredictable results, it risks over-deterring activities related to lawful securities sales.

30 Of course, on remand the Court of Appeals may find it necessary to address some of the difficult and unsettled questions raised by the dissent concerning the availability of contribution in § 12(1) cases in general and in this case in particular.

1 The Court holds that “[i]n the context of a private action under § 12(1), the first prong of the [in pari delicto] test is satisfied if the plaintiff is at least equally responsible for the actions that render the sale of the unregistered securities illegal — the issuer’s failure to register the securities before offering them for sale, or his failure to conduct the sale in such a manner as to meet the registration exemption provisions.” Ante, at 636. I agree that a plaintiff who is at least equally responsible for “the issuer’s failure to register the securities before offering them for sale” can be held *656 in pari delicto. I am perplexed, though, by the Court’s conclusion that a’plaintiff who is at least equally responsible for “the issuer’s failure to conduct the sale in such a manner as to meet the registration exemption provision” can be held in pari delicto. Such a failure is of course never a sufficient condition for § 12(1) strict liability; regardless of how many exemptions for which an offering fails to qualify, § 12(1) is not violated unless the securities in question are offered or sold without registration. Thus, it is hard for me to understand how a plaintiff who bears substantially equal responsibility for the loss of an exemption but who does not bear similar responsibility for the proximate cause of the illegality — the failure to register — can be considered in pari delicto. Part I, infra, reflects my view of how the in pari delicto issue in this case should be resolved under what I deem to be the proper view of the defense.

2 “There is no evidence, however, that Dahl knew that Pinter’s failure to register was in violation of federal and state securities laws.” 787 F. 2d 985 , 987 (CA5 1986). Pinter’s “infer[ence] that Dahl was aware of the duty to register,” ante, at 640, n. 15; see Brief for Petitioners 27, is thus directly contradicted by the Court of Appeals’ conclusion.

3 Indeed, the Court of Appeals may find that Texas law requires a reentry of its judgment. The District Court found that Pinter had violated not only § 12(1) of the Securities Act of 1933, but also Tex. Rev. Civ. Stat. Ann., Art. 581-33(A), (D) (Vernon Supp. 1988), and that the same remedy was authorized by both statutes. See App. to Pet. for Cert, a-37 — a-38. The Court of Appeals affirmed the finding of liability under Texas law, and also squarely held that Dahl was not a “seller” within the meaning of the Texas statute. See 787 F. 2d, at 991 . It is true that the Court of Appeals did not reach the question whether an in pari delicto defense might be aváilable under Texas law. Id., at 990 . If it should conclude, however, that Texas would not recognize that defense on the facts of this case, its judgment should stand regardless of the outcome of any further proceedings concerning the federal issues.

4 Thus, the Court of Appeals on remand may have no choice but to affirm the District Court’s judgment once again, this time on the ground that no contribution claim is properly before it.

5 The Court “express[es] no view as to whether a right of contribution exists under § 12(1) of the Securities Act.” Ante, at 630, n. 9. The Court of Appeals pointed out that “no code section specifically allows for a right of contribution against a ‘seller’ in Dahl’s position.” 787 F. 2d, at 990, n. 8 . Such a right might be found, the court stated, in § 16 of the Act, 15 U. S. C. § 77p, which provides that “[t]he rights and remedies provided by this subchapter shall be in addition to any and all other rights and remedies that may exist at law or in equity.” Whether the availability of such additional rights and remedies depends upon the satisfaction of conditions set forth elsewhere in the Act — such as § 12(1) — is surely an open question. I note also that this Court has been reluctant to imply a right to contribution in statutes silent on the issue. Compare Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981) (no right to contribution under the federal antitrust laws); Northwest Airlines, Inc. v. Transport *660 Workers, 451 U. S. 77 (1981) (no right to contribution by employer against union for violations of either the Equal Pay Act of 1963 or Title VII of the Civil Rights Act of 1964); and Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S. 282 , 285 (1952) (Court refuses to fashion right to maritime contribution in noncollision cases, concluding that “the solution of this problem should await congressional action”); with United States v. Yellow Cab Co., 340 U. S. 543 (1951) (Congress waived sovereign immunity in the Federal Tort Claims Act for contribution claims against the United States).

6 It should be noted that the statutory remedy for damages is not applicable in this case because that remedy is only available if the purchaser “no longer owns the security.” 15 U. S. C. § 771 (1).

7 Another way of putting this is that a defendant in a rescission suit cannot claim contribution when he received the entire proceeds of sale and merely returned those proceeds to the plaintiff in exchange for the plain *662 tiff’s tender of the purchased item (here, the securities). See Olson v. Thompson, 273 Minn. 152 , 154-155, 140 N. W. 2d 321 , 322 (1966) (“While the action is one sounding in tort, the relief sought is for rescission, requiring restitution of the purchase price and a reassignment of the leases. In his third-party action Thompson makes no demand for damages, and the theory on which he claims contribution is not clear, since the parties by the nature of the action are merely restored to the status quo ante”). Thus, it is a basic principle of equity jurisprudence that a claim for contribution only lies for a defendant who “has actually paid or satisfied more than his proportionate share of the debt or obligation.” 4 S. Symons, Pomeroy’s Equity Jurisprudence 1071-1072 (5th ed. 1941); see also Restatement (Second) of Torts § 886A(2) (1979) (“The right of contribution exists only in favor of a tortfeasor who has discharged the entire claim for the harm by paying more than his equitable share of the common liability; and is limited to the amount paid by him in excess of his share. No tortfeasor can be required to make contribution beyond his own equitable share of the liability”).