The US Supreme Court's decision in Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, Slip op., No. 13-435 (Mar. 24, 2015), held that issuers may sometimes be liable under Section 11 of the Securities Act of 1933 ("1933 Act") for statements of opinions in registration statements. Resolving a split in the lower federal courts, the Court held that issuers are not liable for sincerely held (i.e., non-fraudulent) opinions that are ultimately found incorrect. Issuers, however, may be liable for misstatements or omissions of material fact regarding the basis for an opinion where those misstatements or omissions render an opinion misleading. Significantly, the Court also enunciated a pleading standard for section 11 claims predicated on omissions relating to opinions. After Omnicare, plaintiffs must identify particular material facts relating to an issuer’s opinion, the omission of which renders the opinion misleading when considered in light of the entire registration statement—including all hedges, qualifiers or conflicting facts it may contain. This pleading standard, which also is likely to be applied in securities fraud cases under the Securities Exchange Act of 1934 ("1934 Act"), will create significant hurdles for plaintiffs attempting to plead opinion claims that will survive motions to dismiss.
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