See Securities Exchange Act, 15 U.S.C. § 78c(a)(10) (2006) (The term security means any note, stock, treasury stock, security future, bond, debenture…or any put, call, straddle, option…). See also Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750–51 (1975) (noting that “the holders of puts, calls, options, and other contractual rights or duties to purchase or sell securities have been recognized as “purchasers or sellers of securities for purposes of Rule 10b-5” (citing 15 U.S.C. § 78c(a)(13) (defining “buy” or “purchase” as including contracts to “buy, purchase, or otherwise acquire”); 15 U.S.C. § 78c(a)(14) (defining terms “sale” and “sell” to include contracts “to sell or otherwise dispose of.”).

Section 3(a)(4)(A) of the Exchange Act defines a “broker” as “any person engaged in the business of effecting transactions in securities for the account of others.” 15 U.S.C. § 78c(a)(4)(A)(italics added). While the statute does not elaborate on what it means to “effect transactions” or to be “engaged in the business,” courts have identified a number of factors for determining whether a person qualifies as a broker for purposes of § 15(a)(1), including whether that individual: 1) was an employee of the issuer; 2) received commissions as opposed to a salary; 3) was selling, or had previously sold, the securities of other issuers; 4) was involved in negotiations between the issuer and the investor; 5) made valuations as to the merits of the investment or gave advice; and 6) was an active rather than passive finder of investors.

IMITATIONS FOR CERTAIN OFFERINGS.—Notwithstanding paragraph (1), a security is not a covered security if such secu- rity is— (A) a security of an issuer which is a blank check com- pany (as defined in section 7(b) of this title), a partnership, a limited liability company, or a direct participation invest- ment program; (B) a penny stock (as such term is defined in section 3(a)(51) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(51)); or (C) a security issued in an offering relating to a rollup transaction (as such term is defined in paragraphs (4) and (5) of section 14(h) of such Act (15 U.S.C. 78n(h)(4), (5)). 59 (3) LIMITATIONS BASED ON MISCONDUCT.—Notwithstanding paragraph (1), a security is not a covered security— (A) with respect to any State, if the issuer, or a principal officer or principal shareholder thereof— (i) is subject to a statutory disqualification, as de- fined in subparagraph (A), (B), (C), or (D) of section 3(a)(39) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(39)); (ii) has been convicted within 5 years prior to the of- fering of any felony under Federal or State law in con- nection with the offer, purchase, or sale of any security, or any felony under Federal or State law involving fraud or deceit; or (iii) is currently named in and subject to any order, judgment, or decree of any court of competent jurisdic- tion acting pursuant to Federal or State law tempo- rarily or permanently restraining or enjoining such is- suer, officer, or shareholder from engaging in or con- tinuing any conduct or practice in connection with a security; or (B) with respect to a particular State, if the issuer, or a principal officer or principal shareholder thereof— (i) has filed a registration statement which is the subject of a currently effective stop order entered pursu- ant to that State’s securities laws within 5 years prior to the offering; (ii) is currently named in and subject to any admin- istrative enforcement order or judgment of that State’s securities

Those concerns, however, are simply not present here: there is no limited pool of Case 3:15-cv-07658-MAS-LHG Document 323 Filed 07/02/18 Page 20 of 36 PageID: 8228 - 14 - damages, Timber Hill is not asserting a §20A claim, and the class TIAA and Tucson seek to represent includes, by legal definition, Timber Hill. See ECF No. 1 at 1; Timber Hill, ECF No. 1 at 1; 15 U.S.C. §78c(a)(10). Thus, Basile is inapposite and, for this additional reason, Timber Hill’s motion should be denied.

15 U.S.C. § 78c(a)(4)(A) (emphasis added). In contrast, a “dealer” is “any person engaged in the business of buying and selling securities . . . for such person’s own account . . . .” 15 U.S.C. § 78c(a)(5)(A) (emphasis added). There is no dispute that each and every trade at issue was executed by Nomura as principal.

To any person who is or has agreed to be subject to the Commission's Rules of Conduct, 17 CFR 200.735-1 to 200.73 5- SEC 1662 (09-14) 4 Exhibit 3, Page 68 Case 8:16-cv-00974-CJC-AGR Document 199-2 Filed 01/04/17 Page 72 of 150 Page ID #:5512 18, and who assists in the investigation by the Commission of possible violations of the federal securities laws (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(47)), in the preparation or conduct of enforcement actions brought by the Commission for such violations, or otherwise in connection with the Commission's enforcement or regulatory functions under the federal securities laws. 17.

; id. at 273 (“This case involves no securities listed on a domestic exchange . . . .”); cf. 15 U.S.C. §§78c(a)(1), 78f. Thus, while the OTC market may not be a “national securities exchange,” it is a “domestic exchange” within the meaning of both Morrison and the Exchange Act.

13 Case 1:11-cv-09202-PAC Document 33 Filed 03/30/12 Page 24 of 62 “unless such provision makes specific reference to such . . . establishment.” 15 U.S.C. § 78c(c) (emphasis added). None of the Exchange Act provisions relied upon by the SEC in its Complaint -- sections 10, 13, and 20 -- refer specifically to FNMA.

That definition contemplates a single person or entity. 15 U.S.C. § 78c(a)(9). The structure of the Rule likewise confirms that “offering person” refers only to the entity proposing the tender offer to the target’s stockholders.

’s Mot. at 15, but this contradicts Congress’ inclusion of “governments” in Section 13(d), see 15 U.S.C. § 78c(a)(9). Moreover, if Defendant were correct, Defendant could “decide” to engage in many clearly commercial activities such as making loans, buying and selling goods, or issuing debt, and its “decision” would make all those actions “sovereign.”