In yesterday’s decision in FS Credit Opportunities Corp. v. Saba Capital Master Fund, a sharply divided court rejected the efforts of investors to sue an investment company to rescind a contract that appears to violate the Investment Company Act of 1940, concluding that only the SEC may bring suit to enforce the statute. Although the argument suggested considerable sympathy for the investors’ suit, in the end the justices, as they so often have in recent years, refused to “imply” a private right of action not explicitly written into federal law.
Justice Amy Coney Barrett’s opinion for a majority of six justices pitches the case as a straight-up dispute about interpretive methodology, beginning with the precept that “Congress, not the Judiciary, decides who may enforce the law.” Because the relevant statute – the Investment Company Act – “designates the [SEC] as its primary enforcer and expressly permits shareholders and issuers … to enforce two of its provisions,” one should not expect the majority to “decide [that] another provision of the Act impliedly empowers private parties to sue for any rescission of any contract that allegedly violates the Act.”
Barrett starts with examples of how Congress “usually” proceeds when it “creates a private of action,” – “expressly.” She points to statutes providing that “a person whose religious freedom has been burdened … may assert that violation as a claim … in a judicial proceeding” and that a “‘person aggrieved’ [by discrimination] may ‘institut[e]’ a ‘civil action for … relief.’” She emphasizes that “[a]t one point in time, the Court stood ready to let” “[p]rivate litigants … sue to enforce statutes that lack comparable language.” “But,” she notes, “we have since rejected the practice of fashioning rights of action as we see fit,” in part because “[h]ome-grown causes of action are difficult to reconcile with the Constitution’s separation of legislative and judicial power.”
When an opinion starts out in that vein, it is pretty much a foregone conclusion that the court is not going to find a private action and FS Credit has no surprises in store. Barrett next quotes the provision in question, which states that if a contract inconsistent with the statute “has been performed, a court may not deny rescission at the instance of any party.” The “question” for the justices, then, is “whether the phrase ‘rescission at the instance of any party’ implies that private parties may sue.” Barrett tersely comments: “It does not.”
Barrett makes two main analytical points. First, she sees the statute as “‘a mandate directed to courts,’ rather than a provision that ‘confers a right on a specified class of persons.’” Notably, “[t]he key actor is ‘a court,’ not an individual. … And a court is told that it ‘may not deny’ the remedy of rescission to parties who request it.” Thus, she reasons, the “wording presupposes that parties are already before the court and directs the court’s use of its remedial authority. It says not a word about individual rights.”
Second, she relies on a distinction between remedies and causes of action: “It bears emphasis that contract law treats rescission as a remedy, not a cause of action.” Generalizing from several examples, she states that “other sources of law typically supply the right of action in suits requesting rescission.” Building on that point, Barrett underscore’s the statute’s “focus on a court’s remedial power.” She explains how “difficult” it is under traditional rules “to obtain rescission if a contract has been performed,” noting that “the common law … leaves parties [to a performed contract] ‘where their own acts have placed them.’” For her, the statute does nothing more than “deviate[] from that common-law rule by instructing that courts ‘may not deny rescission’ on the basis that a contract has been performed.” Thus, though the statute “unlocks remedies that would otherwise by unavailable[,] [i]t does not create a cause of action.”
Barrett next turns to the “counterarguments” of the investor, which rely for the most part on the 1979 decision in Transamerica Mortgage Advisors v. Lewis – which recognized a similar cause of action in a companion statute with phrasing that was identical to the phrasing of the investment company statute at the time. Barrett finds that decision irrelevant because of major amendments to the statute at issue in this case that Congress adopted just after the court’s decision in TAMA. For Barrett, “changed language typically indicates changed meaning[,]” and the “significant” changes that were made here – “a renovation, not a new coat of paint” – deprive TAMA of any continuing force as to the meaning of the law as it stands.
The opinion draws a lengthy dissent from Justice Ketanji Brown Jackson (joined by Justice Sonia Sotomayor and in part by Justice Elena Kagan), contending that the justices have misread the text and structure of the statute, and even more pointedly that the relevant legislative history makes it clear that Congress contemplated a private right of action. (Somewhat interestingly, Kagan does not join the legislative history part of Jackson’s opinion, stating that such history is only necessary to invoke when “statutory text in context remains, after careful review, stubbornly ambiguous” – though, in her view, that is not the case here.)
Barrett responds, as you would expect, both by rejecting the importance of legislative history – “we are governed by laws, not by the intentions of legislators” – and also with a lengthy passage contending that the dissent misreads the relevant history.
It is a bit surprising at this late date to see such a sustained debate among the justices on the relevance of legislative history, as majority opinions for many years now have decried its impropriety so forcefully as to suppress any mention of legislative history in an opinion seeking to speak for the court. But in the big picture, this case reaches the result most would expect, rejecting the invitation to find a private right of action in the statute. The main practical significance is that it provides relief to investment companies who otherwise would be exposed to much more litigation than they would expect to come from the SEC.
