Correcting Incorrect Opinions About Omnicare
Lane Powell Shareholders Doug Greene and Claire Loebs Davis co-authored an article in the September issue of the Professional Liability Underwriting Society Journal titled “Correcting Incorrect Opinions About Omnicare.” The article discussed Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund in which the Supreme Court held that a statement of opinion is only false if the speaker does not genuinely believe it, or if — as with any other statement — it omits facts that make it misleading. Greene and Davis also provided guidance on a number of inaccurate opinions that many defense attorneys have about Omnicare.
These are tremendous improvements in the law, and will help defendants win more cases, not only under Section 11, the statute at issue in Omnicare, but also under Section 10(b), since Omnicare’s holding applies to the “false or misleading statement” element common to both statutes. Yet we continue to see extensive commentary from defense lawyers saying that the ruling expanded the basis for defendants’ liability. That is simply wrong. Indeed, Omnicare has the potential to be the most helpful Supreme Court decision for defendants since Tellabs, if we in the defense bar use it correctly.