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Regulation Securities Litigation White Collar Crime

Limitations on Omissions Liability for Opinions Following 'Omnicare'

“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 v. Laborers District Council , 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.

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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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