Eng v. Securities & Exchange Commission

49 F. App'x 697

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 17, 2002
• Docket: No. 01-70856; SEC No. SEC-No. 3-10009
• Status: Published

Opinion

MEMORANDUM

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The Commission’s finding that the statement was misleading and promised a result for which there was no reasonable basis is supported by substantial evidence. 15 U.S.C. § 78y(a)(4). Although Eng claims that his statements are constitutionally protected, full First Amendment protection is only given for commercial speech to statements that are truthful and not misleading. Greater New Orleans Broadcasting Assoc., Inc. v. United States, 527 U.S. 173, 183, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999) (citing Central Hudson Gas & Elec. Corp. v. Public Service Commission of N.Y., 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980)).

As the First Amendment does not shield from liability Eng’s commercial speech that was found to be misleading, we do not reach the question of whether the National Association of Securities Dealers is a government actor.

PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.