Anthony Kennedy

“ There is no authority whatsoever for limiting § 14 (a) to protecting those minority shareholders whose numerical strength could permit them to vote down a proposal. One of Section 14 (a) 's "chief purposes is 'the protection of investors.' " J.I. Case Co., v. Borak, 377 U.S., at 432, 1559-1560. Those who lack the strength to vote down a proposal have all the more need of disclosure. ”

“ The voting process involves not only casting ballots but also the formulation and withdrawal of proposals, the minority's right to block a vote through court action or the threat of adverse consequences, or the negotiation of an increase in price. The proxy rules support this deliberative process. These practicalities can result in causation sufficient to support recovery.
The facts in the case before us prove this point. Sandberg argues that had all the material facts been disclosed, FABI or the Bank likely would have withdrawn or revised the merger proposal. ”

“ In the Court of Appeals, the parties did not brief, nor did the panel address, the possibility that nonvoting causation theories would suffice to allow for recovery.
Before this Court petitioners do not argue that Sandberg must demonstrate reliance on her part or on the part of other shareholders. The matter of causation, however, must be addressed.
The severe limits the Court places upon possible proof of nonvoting causation in a § 14 (a) private action are justified neither by our precedents nor any case in the courts of appeals. ”

“ Ante, at 1102-1105.
I acknowledge that we should exercise caution in creating implied private rights of action and that we must respect the primacy of congressional intent in that inquiry. See ante, at ----. ”