Omnicare Inc. v. Laborers District Council Construction Industry Pension Fund
- Amicus Brief (09/02/2014)
Omnicare, Inc., a company that provides pharmaceutical care to the elderly, allegedly engaged in illegal kickback arrangements with drug companies. In connection with an offering of securities for sale to the public, however, Omnicare filed a registration statement that stated that the company believed its contractual arrangements were lawful. Pension plans and others holding Omnicare’s stock sued under federal securities laws when the nature of Omnicare’s contractual arrangements was revealed. A court of appeals held that Omnicare’s statement was actionable under the securities laws, and Omnicare sought review by the Supreme Court, arguing that its statement was one of opinion and could not be false or misleading unless Omnicare did not genuinely hold the opinion. The Supreme Court granted review. Public Citizen filed an amicus brief on the merits, supporting the plaintiffs (who are also supported by the Solicitor General). Public Citizen’s brief argued that Omnicare’s position is contrary to the longstanding treatment of statements of opinion in many areas of law. The law has long recognized that a statement of opinion may be actionable if it implies factual statements that are untrue or if it is misleading in the absence of additional factual disclosures. The Supreme Court, largely following the approach of our brief, held that state action immunity is not available to industry-dominated boards that are not actively supervised by the state.