by Giulia Piccininni *
Federal Courts of Appeals throughout the country have interpreted § 14(e) of the Williams Act to require plaintiffs to make a showing of scienter when alleging entities engaged in tender offers made material misstatements and omissions in connection with tender offers. This long-standing interpretation was interrupted in 2018 when the Ninth Circuit held in Varjabedian v. Emulex Corporation that a showing of mere negligence was enough to plead a § 14(e) claim. The Supreme Court granted certiorari in Varjabedian to resolve the circuit split but ultimately did not issue a decision. The case was further complicated when the defendant and numerous amicus briefs raised an additional issue: whether § 14(e) gives plaintiffs a private right of action at all. This Contribution argues that § 14(e) is currently misinterpreted by a majority of the Courts of Appeals: while § 14(e) does not establish a private right of action, it does provide for SEC enforcement that can proceed under a negligence standard. Since § 14(e)’s prohibition on false or misleading statements does not contain language that necessarily implies scienter, such a showing is not required. At the same time, because § 14(e)’s text does not manifest clear congressional intent to create a private right of action, one does not exist.