Both Corporations Code Section 25401 and Rule 10b-5 concern securities fraud. Section 25401, however, was modeled on Section 12(2) (now 12(a)(2)) of the Securities Act of 1933 while Section 10b-5 was adopted under Section 10(b) of the Securities Exchange Act of 1934. This basic history is important because it explains why these two seemingly similar anti-fraud provisions differ so greatly when it comes to the elements of a violation. Section 25401 does not require pleading or proof of scienter while Rule 10b-5 does.
U.S. District Court Judge Gonzalo P. Curiel made this clear yesterday when he refused to dismiss claims under Section 25401:
"In opposition, Plaintiff argues that scienter is not required to assert a violation of California securities law under sections 25401 and 25501. Playground does not address this argument in its reply. The Court agrees with Plaintiff that scienter is not an element of sections 25401 and 25501. See I-Enterprise Co. LLC v. Draper Fisher Jurvetson Mgmt. Co. V, LLC, No. C-03-1561-MMC, 2005 U.S. Dist. LEXIS 39481, 2005 WL 3590984, at *27 (N.D. Cal. Dec. 30, 2005) (violations of sections 25401 and 25501 does not require proof of intent); BayStar Capital Mgmt. LLC v. Core Pacific Yamaichi Int'l (H.K.) Ltd., CV 05-1091 ABC (CWx), 2007 WL 9711373, at *4 (C.D. Cal. Apr. 16, 2007) (reliance and scienter need not be shown for section 25501)."