York may not invoke the Eleventh Amendment, since that Amendment in terms bars only federal court suits against States by citizens of other States.

Edelman v. Jordan, 415 U. S. 651, 687 (1974) (BRENNAN, J., dissenting). I would grant the petition and reverse the judgment of the Court of Appeals.

Certiorari denied. MR. JUSTICE MARSHALL took no part in the consideration or decision of this petition.

Certiorari denied.

MR. JUSTICE WHITE, dissenting.

This case concerns the standard of care required of plaintiffs seeking to recover damages for violations of § 10 (b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. In the wake of this Court‘s decision in

Ernst & Ernst v. Hochfelder, 425 U. S. 185 (1976), the Courts of Appeals have reached differing conclusions as to the degree of diligence appropriately required. The court below held that because

Ernst & Ernst had imposed on defendants a standard not stricter than nonrecklessness, a plaintiff would not be barred from recovery unless he had been reckless.

551 F. 2d 1005. Similarly, the Tenth and Seventh Circuits have held that, after

Ernst & Ernst, the contributory fault of the plaintiff would bar recovery only if it constituted “gross conduct somewhat comparable to that of defendant.”

Holdsworth v. Strong, 545 F. 2d 687, 693 (CA10 1976), cert. denied,

430 U. S. 955 (1977);

Sundstrand Corp. v. Sun Chemical Corp., 553 F. 2d 1033, 1048 (CA7), cert. denied, ante, p. 875. Also, the Third Circuit now “require[s] only that the plaintiff act reasonably” and has shifted to the defendant the burden of proving the plaintiff‘s unreasonable conduct.

Straub v. Vaisman & Co., 540 F. 2d 591, 598 (1976). The Second Circuit, however, appears to adhere to the view that the plaintiff must demonstrate due diligence in discovering important information.

Hirsch v. Du Pont, 553 F. 2d 750, 762-763 (1977); accord,

NBI Mortgage Investment Corp. v. Chemical Bank, 75 Civ. 3411 (SDNY May 24, 1977) (“the standard of due diligence is still viable and accepted in this circuit“).

The Court should take this opportunity to clarify the standard of care expected of plaintiffs in litigation under Rule 10b-5. Business can be transacted more freely and efficiently if the responsibility for verifying underlying facts is clearly allocated. Because securities litigation can be complex and expensive, it shoud be avoided to the maximum extent by early clarification of the ground rules. This Court should thus promptly resolve the existing uncertainty as to the proper standard of care required of plaintiffs after

Ernst & Ernst. Accordingly, I dissent from the denial of certiorari in this case.

Certiorari before judgment to C. A. 9th Cir. and other relief denied.

Certiorari denied.

MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments,

Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.