What is the current state of the law on section 17(a) of the Securities Act?

Following the filing of our opinion in this case on October 19, 1979, and the issuance of the mandate on November 11, 1979, our attention was called to this circuit's decision in Kirshner v. United States of America, No. 77-6104, 603 F.2d 234, reported in an advance sheet dated October 15, 1979. In Kirshner, the majority held that section 17(a) of the Securities Act afforded a private right of action. In light of Kirshner, which had been filed November 30, 1978, and thus was the law of the circuit when the case at bar was before us, we have reconsidered our disposition of the plaintiffs' claim under section 17(a). Once again, however, we conclude that this claim presents an issue that we need not reach.