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The late Senator Daniel Patrick Moynihan famously wrote, “Everyone is entitled to his own opinion, but not his own facts.” The Supreme Court has applied this maxim to the securities laws, holding in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U.S. 175 (2015), that while statements of opinion generally are not actionable, there are some narrow circumstances in which such statements entail or imply false or misleading assertions of fact. The lower courts have since adopted inconsistent approaches to statements of opinion, some of which are out‑of‑step with the Supreme Court’s guidance. Here, we offer some proposed limitations on one kind of opinion liability under Omnicare — liability for the omission of material facts — with the goal of confining such claims to the narrow boundaries outlined by the Supreme Court.
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DOJ’s Cyber Fraud Initiative: A Wake-up Call That Keeps Ringing
By Randy S. Grossman, Kareem A. Salem and Kayla LaRosa
DOJ’s Cyber Fraud Initiative has been a wake-up call for companies to prioritize cybersecurity and adhere to stringent standards. By leveraging the FCA, DOJ has used a powerful enforcement tool to target a wide range of cybersecurity failures and misrepresentations. The increasing focus on cybersecurity by enforcement agencies means that robust cybersecurity practices are becoming a standard expectation, not just a best practice.
The State of Supreme Court Jurisprudence On Public Corruption
By Carrie H. Cohen and Allison M. Magnarelli
In the past decade, each time the Supreme Court has taken certiorari in a public corruption case, the court has reversed trial convictions and limited the types of conduct that constitute a federal bribery offense.
Defending Against Extradition to the United States
By Robert J. Anello and Richard F. Albert
The arm of U.S. extradition law is long. Fortunately, practitioners have defenses at their disposal that they may raise in the requested country’s courts to help either limit the scope of prosecution once extradition occurs, or to prevent it altogether.
New DOJ Self-Disclosure Pilot Program Increases Risk for Startups
By Jonathan Fahey, Jonathan P. Lienhard and Oliver Roberts
The DOJ has created new incentives for employee, or anyone, to report criminal misconduct allegedly committed by companies and their agents. Given their often laxer internal reporting structures and higher employee turnover rates, startup companies should pay particularly close attention to this new development to best mitigate legal risks.