If correctly understood and applied, the Supreme Court’s decision in Omnicare, Inc. v. Laborers Dist. Council Const. Industry Pension Fund, 135 S. Ct. 1318 (2015), will allow corporate officers to speak more freely, without fear of unfair liability. And defendants will win more cases.
Yet I keep seeing commentary from defense lawyers saying that Omnicare expanded the basis for defendants’ liability. That sort of statement is simply wrong, and fails to appreciate the muddled state of the pre-Omnicare standards for judging statements of opinion and the Omnicare standard itself. Indeed, Omnicare – which applies to the “false or misleading statement” element of both Section 11 and Section 10(b) – will be the most helpful Supreme Court decision for defendants since Tellabs, if we in the defense bar use it right.
‘Enforcement 40’ for 2020
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