Pure Statements of Opinion in Registration Statements Not Actionable
On March 24, 2015, the U.S. Supreme Court held that a pure statement of opinion in a securities registration statement is not an “untrue statement of a material fact” under Section 11 of the Securities Act of 1933 just because the opinion is later proven incorrect. However, the statement of opinion can be actionable on an omissions theory if the registration statement omits material facts about the issuer’s inquiry into, or knowledge about, the statement of opinion and if those omitted facts conflict with what a reasonable investor would have expected from a contextual reading of the statement of opinion. The decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund could lead to additional litigation about whether statements of opinion are actionable, but the Court imposed some important constraints on investors’ ability to assert § 11 claims predicated on statements of opinion.