Whether Section 47(b) of the Investment Company Act creates an implied private right of action

QUESTION PRESENTED The courts of appeals have split 2-1 over whether Congress created an implied private right of action in Section 47(b) of the Investment Company Act (ICA), which provides: (1) A contract that is made, or whose performance involves, a_ violation of this subchapter ... is unenforceable by either party . (2) To the extent that a contract described in paragraph (1) has been performed, a court may not deny rescission at the instance of any party unless such court finds that under the circumstances the denial of rescission would produce a more equitable result than its grant and would not be inconsistent with the purposes of this subchapter. 15 U.S.C. § 80a-46(b)(1)—(2). The Third and Ninth Circuits, relying on statutory text and structure, hold that Section 47(b) does not create an implied private right of action, and a panel of the Fourth Circuit has agreed in an unpublished opinion. Only the Second Circuit—where plaintiffs may be able to sue most investment funds subject to the ICA, given New York’s and the New York Stock Exchange’s roles in financial operations— holds the opposite based on an “inference”: parties may bring a lawsuit under Section 47(b), even though Congress never said so. The question presented is whether Section 47(b) of the ICA, 15 U.S.C. § 80a-46(b), creates an implied private right of action.