March 07, 2016
In Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 135 S.Ct. 1318 (2015) (“Omnicare”), the Supreme Court pronounced the standard for determining whether a statement of opinion is actionable under Section 11 of the Securities Act of 1933 (the “Securities Act”). The Second Circuit’s first published opinion applying Omnicare, In re Sanofi Securities Litigation, AG Funds, L.P. v. Sanofi, Nos. 15-588-cv, 15-623-cv (2d Cir. Mar. 4, 2016) (“Sanofi”), applies Omnicare to claims challenging statements of opinion under Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), and reflects a rigorous, context-focused application of Omnicare that underscores the hurdles to pleading federal securities law claims based on omissions in connection with a statement of opinion. Concluding that the omitted facts did not, in context, render defendants’ statements of opinion materially misleading, the Second Circuit affirmed the dismissal of claims under Sections 11 and 12 of the Securities Act and Section 10(b) of the Exchange Act.