In its seminal 2015 Omnicare decision—the leading recent U.S. Supreme Court guidance concerning when statements of opinion may be actionable under U.S. securities law—the court articulated standards for determining, among other things, whether opinion statements “may be rendered misleading by the omission of discrete factual representations.”1 The court held that “whether an omission makes an expression of opinion misleading always depends on context,” stressing that “an omission that renders misleading a statement of opinion when viewed in a vacuum may not do so once that statement is considered, as is appropriate, in a broader frame.”2
The court pointed to three considerations as relevant in determining whether in context an opinion statement is misleading: (1) the type of document containing the statement in question;3 (2) the “surrounding text, including hedges, disclaimers, and apparently conflicting information”;4 and (3) the “customs and practices of the relevant industry.”5 The court provided no further guidance concerning how these considerations should be applied or how heavily they should be weighed.
