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Effect of Omnicare On Private Placements in Film Ventures
In the entertainment industry, we frequently see private placement memoranda seeking to raise capital for films and that refer to success stories such as My Big Fat Greek Wedding , Little Miss Sunshine or other independent films that became box office hits. But the U.S. Supreme Court's March 24, 2015, decision in Omnicare Inc. v. Laborers District Counsel Construction Industry Pension Fund, 13'435, should make all producers think twice about whether, or how, to include these success stories.
In the Omnicare case, in a registration statement the defendant had included opinions that it was legally complying with laws regarding its business practices of accepting rebates from drug companies in connection with its business of providing pharmacy services for residents of nursing homes. Even though Omnicare noted in the registration statement ' near its statements of belief that it was legally compliant ' that state and federal enforcement actions could adversely affect its business, the Supreme Court found a potential violation of '11 of the 1933 Securities Act: there was an issue for trial about whether Omnicare could hold a reasonable belief that it was legally compliant in light of such federal and state enforcement actions. The Supreme Court therefore reversed a decision by the U.S. Court of Appeals for the Sixth Circuit in favor of Omnicare and sent the case back for further proceedings.
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