In Securities & Exchange Commission v. Tambone, No. 07-1384, 2010 U.S. App. LEXIS 5031 (1st Cir. Mar. 10, 2010) (en banc), the United States Court of Appeals for the First Circuit, sitting en banc, vacated the three-judge panel’s prior holding and affirmed the district court’s dismissal of a Rule 10b-5 claim asserted by the Securities & Exchange Commission (“SEC”) against defendants James Tambone and Robert Hussey. In doing so, the First Circuit clarified what it means to “make” a statement under Rule 10b-5(b) promulgated under Section 10(b) of the Securities Exchange Act of 1934 (“1934 Act”).