Important: An indictment is an allegation. I am presumed innocent unless and until the government proves every element beyond a reasonable doubt in court.
The Fifth Circuit decision addressed whether the superseding indictment was legally sufficient to move forward at the pleading stage. It did not decide that any statement was actually false, that any alleged statement was material, or that any particular investor was actually defrauded. Those questions are for trial, with the government bearing the burden of proof.
The Fifth Circuit relied in part on the Supreme Court’s decision in Kousisis v. United States. In plain English, Kousisis involved alleged lies used to obtain contract payments. The Supreme Court explained that fraud can exist when a material lie is used to obtain money or property, even if the other side later argues it got some value in return.
My view is that the Fifth Circuit applied that reasoning too broadly to public market commentary. A fraud case still requires proof of a materially false statement, materiality, and intent. Converting public discussion about trading into criminal fraud risks turning everyday market speech into a felony, and that is not a stable foundation for free markets or free expression.
"Material" does not mean "interesting" or "influential." Materiality is about whether a reasonable investor would view the alleged fact as important in deciding to buy or sell. In public markets, opinions, predictions, and trade ideas are everywhere. A criminal case has to identify a materially false statement, not just speech that moved attention.
Markets are loud by design. People share bullish and bearish views, post charts, debate catalysts, and change their minds in real time. If prosecutors can treat public trading commentary as a criminal "scheme" without clear, objective falsity and clear materiality, the result is a chilling effect on speech and a blurry line between fraud and disagreement. That is dangerous for market participants, creators, and everyday retail traders.
I respectfully disagree with the Fifth Circuit’s decision and will continue to challenge the government’s theory in court. I maintain my innocence.