throbber

`(Slip Opinion)
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` OCTOBER TERM, 2014
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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`
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` being done in connection with this case, at the time the opinion is issued.
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`
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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`
` Syllabus
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` OMNICARE, INC., ET AL. v. LABORERS DISTRICT
`
`
`COUNCIL CONSTRUCTION INDUSTRY PENSION
`
`
`FUND ET AL.
`
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE SIXTH CIRCUIT
` No. 13–435. Argued November 3, 2014—Decided March 24, 2015
`
`The Securities Act of 1933 requires that a company wishing to issue
`securities must first file a registration statement containing specified
`information about the issuing company and the securities offered.
`See 15 U. S. C. §§77g, 77aa. The registration statement may also in-
`clude other representations of fact or opinion. To protect investors
`
`and promote compliance with these disclosure requirements, §11 of
`
`the Act creates two ways to hold issuers liable for a registration
`
`statement’s contents: A purchaser of securities may sue an issuer if
`the registration statement either “contain[s] an untrue statement of a
`
`material fact” or “omit[s] to state a material fact . . . necessary to
`make the statements therein not misleading.” §77k(a). In either
`
`case, the buyer need not prove that the issuer acted with any intent
`
` to deceive or defraud. Herman & MacLean v. Huddleston, 459 U. S.
`375, 381–382.
`
`Petitioner Omnicare, a pharmacy services company, filed a regis-
`tration statement in connection with a public offering of common
`stock. In addition to the required disclosures, the registration state-
`ment contained two statements expressing the company’s opinion
`that it was in compliance with federal and state laws. After the Fed-
`
`eral Government filed suit against Omnicare for allegedly receiving
`
`kickbacks from pharmaceutical manufacturers, respondents, pension
`funds that purchased Omnicare stock (hereinafter Funds), sued Om-
`nicare under §11. They claimed that Omnicare’s legal-compliance
`
`statements constituted “untrue statement[s] of . . . material fact” and
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`that Omnicare “omitted to state [material] facts necessary” to make
`those statements not misleading.
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`2
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`OMNICARE, INC. v. LABORERS DIST. COUNCIL
`CONSTR. INDUSTRY PENSION FUND
`
`
`Syllabus
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`
`
`The District Court granted Omnicare’s motion to dismiss. Because
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`the Funds had not alleged that Omnicare’s officers knew they were
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`violating the law, the court found that the Funds had failed to state a
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`§11 claim. The Sixth Circuit reversed. Acknowledging that the
`statements at issue expressed opinions, the court held that no show-
`ing of subjective disbelief was required. In the court’s view, the
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`Funds’ allegations that Omnicare’s legal-compliance opinions were
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`objectively false sufficed to support their claim.
`
`Held:
`
`
`1. A statement of opinion does not constitute an “untrue statement
`of . . . fact” simply because the stated opinion ultimately proves incor-
`
`
`rect. The Sixth Circuit’s contrary holding wrongly conflates facts and
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`opinions. A statement of fact expresses certainty about a thing,
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`whereas a statement of opinion conveys only an uncertain view as to
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`that thing. Section 11 incorporates that distinction in its first clause
`by exposing issuers to liability only for “untrue statement[s] of . . .
`fact.” §77k(a) (emphasis added). Because a statement of opinion ad-
`
`mits the possibility of error, such a statement remains true—and
`
`thus is not an “untrue statement of . . . fact”—even if the opinion
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`turns out to have been wrong.
`
`But opinion statements are not wholly immune from liability under
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`§11’s first clause. Every such statement explicitly affirms one fact:
`
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`that the speaker actually holds the stated belief. A statement of
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`opinion thus qualifies as an “untrue statement of . . . fact” if that fact
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`is untrue—i.e., if the opinion expressed was not sincerely held. In
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`
`addition, opinion statements can give rise to false-statement liability
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`under §11 if they contain embedded statements of untrue facts.
`Here, however, Omnicare’s sincerity is not contested and the state-
`ments at issue are pure opinion statements. The Funds thus cannot
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`establish liability under §11’s first clause. Pp. 6–10.
`
`2. If a registration statement omits material facts about the issu-
`er’s inquiry into, or knowledge concerning, a statement of opinion,
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`and if those facts conflict with what a reasonable investor, reading
`the statement fairly and in context, would take from the statement
`itself, then §11’s omissions clause creates liability. Pp. 10–20.
`
`
`(a) For purposes of §11’s omissions clause, whether a statement
`
`is “misleading” is an objective inquiry that depends on a reasonable
`investor’s perspective. Cf. TSC Industries, Inc. v. Northway, Inc., 426
`
`U. S. 438, 445. Omnicare goes too far by claiming that no reasonable
`person, in any context, can understand a statement of opinion to con-
`
`vey anything more than the speaker’s own mindset. A reasonable in-
`vestor may, depending on the circumstances, understand an opinion
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`statement to convey facts about the speaker’s basis for holding that
`
`view. Specifically, an issuer’s statement of opinion may fairly imply
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`3
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`Cite as: 575 U. S. ____ (2015)
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`
`Syllabus
`facts about the inquiry the issuer conducted or the knowledge it had.
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`And if the real facts are otherwise, but not provided, the opinion
`statement will mislead by omission.
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`An opinion statement, however, is not misleading simply because
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`the issuer knows, but fails to disclose, some fact cutting the other
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`way. A reasonable investor does not expect that every fact known to
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`
`an issuer supports its opinion statement. Moreover, whether an
`omission makes an expression of opinion misleading always depends
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`on context. Reasonable investors understand opinion statements in
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`light of the surrounding text, and §11 creates liability only for the
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`omission of material facts that cannot be squared with a fair reading
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`of the registration statement as a whole. Omnicare’s arguments to
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`the contrary are unavailing. Pp. 10–19.
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`(b) Because neither court below considered the Funds’ omissions
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`theory under the right standard, this case is remanded for a determi-
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`nation of whether the Funds have stated a viable omissions claim.
`
`On remand, the court must review the Funds’ complaint to determine
`whether it adequately alleges that Omnicare omitted from the regis-
`tration statement some specific fact that would have been material to
`a reasonable investor. If so, the court must decide whether the al-
`leged omission rendered Omnicare’s opinion statements misleading
`
`in context. Pp. 19–20.
`719 F. 3d 498, vacated and remanded.
`KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
`
`
`C. J., and KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ.,
`
`
`
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` joined. SCALIA, J., filed an opinion concurring in part and concurring in
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` the judgment. THOMAS, J., filed an opinion concurring in the judgment.
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`

`

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` Cite as: 575 U. S. ____ (2015)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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`
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 13–435
`_________________
` OMNICARE, INC., ET AL., PETITIONERS v. LABORERS
`
`
`DISTRICT COUNCIL CONSTRUCTION INDUSTRY
`
`PENSION FUND ET AL.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE SIXTH CIRCUIT
`
`
`[March 24, 2015]
`
` JUSTICE KAGAN delivered the opinion of the Court.
`Before a company may sell securities in interstate com-
`
`merce, it must file a registration statement with the Secu-
`rities and Exchange Commission (SEC). If that document
`either “contain[s] an untrue statement of a material fact”
`or “omit[s] to state a material fact . . . necessary to make
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`the statements therein not misleading,” a purchaser of the
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`stock may sue for damages. 15 U. S. C. §77k(a). This case
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`requires us to decide how each of those phrases applies to
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`statements of opinion.
`
`
`I
`The Securities Act of 1933, 48 Stat. 74, 15 U. S. C. §77a
`
`
`et seq., protects investors by ensuring that companies
`
`issuing securities (known as “issuers”) make a “full and
`fair disclosure of information” relevant to a public offering.
`Pinter v. Dahl, 486 U. S. 622, 646 (1988). The linchpin of
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`the Act is its registration requirement. With limited
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`exceptions not relevant here, an issuer may offer securi-
`ties to the public only after filing a registration statement.
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`See §§77d, 77e. That statement must contain specified
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`

`

`2
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` OMNICARE, INC. v. LABORERS DIST. COUNCIL
`CONSTR. INDUSTRY PENSION FUND
`
`Opinion of the Court
`
`information about both the company itself and the security
`
`for sale. See §§77g, 77aa. Beyond those required disclo-
`sures, the issuer may include additional representations of
`either fact or opinion.
`
`Section 11 of the Act promotes compliance with these
`
`
`disclosure provisions by giving purchasers a right of action
`
`against an issuer or designated individuals (directors,
`
`partners, underwriters, and so forth) for material mis-
`statements or omissions in registration statements. As
`
`relevant here, that section provides:
`“In case any part of the registration statement, when
`such part became effective, contained an untrue
`
`statement of a material fact or omitted to state a ma-
`terial fact required to be stated therein or necessary to
`make the statements therein not misleading, any per-
`son acquiring such security . . . [may] sue.” §77k(a).
`
`Section 11 thus creates two ways to hold issuers liable for
`
`the contents of a registration statement—one focusing on
`what the statement says and the other on what it leaves
`out. Either way, the buyer need not prove (as he must to
`establish certain other securities offenses) that the de-
`fendant acted with any intent to deceive or defraud.
`Herman & MacLean v. Huddleston, 459 U. S. 375, 381–
`382 (1983).
`
`
`This case arises out of a registration statement that
`
`petitioner Omnicare filed in connection with a public
`offering of common stock. Omnicare is the nation’s largest
`
`provider of pharmacy services for residents of nursing
`homes. Its registration statement contained (along with
`
`all mandated disclosures) analysis of the effects of various
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`federal and state laws on its business model, including its
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`acceptance of rebates from pharmaceutical manufacturers.
`
`See, e.g., App. 88–107, 132–140, 154–166. Of significance
`here, two sentences in the registration statement ex-
`
`pressed Omnicare’s view of its compliance with legal
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` Cite as: 575 U. S. ____ (2015)
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`Opinion of the Court
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`3
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`requirements:
` “We believe our contract arrangements with other
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`healthcare providers, our pharmaceutical suppli-
`ers and our pharmacy practices are in compliance
`with applicable federal and state laws.” Id., at 95.
` “We believe that our contracts with pharmaceutical
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`manufacturers are legally and economically valid
`arrangements that bring value to the healthcare
`
`system and the patients that we serve.” Id., at 137.
`
`Accompanying those legal opinions were some caveats. On
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`the same page as the first statement above, Omnicare
`
`mentioned several state-initiated “enforcement actions
`against pharmaceutical manufacturers” for offering pay-
`
`ments to pharmacies that dispensed their products; it then
`
`cautioned that the laws relating to that practice might “be
`interpreted in the future in a manner inconsistent with
`our interpretation and application.” Id., at 96. And adja-
`cent to the second statement, Omnicare noted that the
`Federal Government had expressed “significant concerns”
`about some manufacturers’ rebates to pharmacies and
`warned that business might suffer “if these price conces-
`sions were no longer provided.” Id., at 136–137.
`
`Respondents here, pension funds that purchased Om-
`
`nicare stock in the public offering (hereinafter Funds),
`brought suit alleging that the company’s two opinion
`statements about legal compliance give rise to liability
`under §11. Citing lawsuits that the Federal Government
`
`later pressed against Omnicare, the Funds’ complaint
`maintained that the company’s receipt of payments from
`
`drug manufacturers violated anti-kickback laws. See id.,
`at 181–186, 203–226. Accordingly, the complaint asserted,
`Omnicare made “materially false” representations about
`
`legal compliance. Id., at 274. And so too, the complaint
`continued, the company “omitted to state [material] facts
`necessary” to make its representations not misleading.
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`

`

`4
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` OMNICARE, INC. v. LABORERS DIST. COUNCIL
`CONSTR. INDUSTRY PENSION FUND
`
`Opinion of the Court
`
`Id., at 273. The Funds claimed that none of Omnicare’s
`
`officers and directors “possessed reasonable grounds” for
`thinking that the opinions offered were truthful and com-
`
`
`plete. Id., at 274. Indeed, the complaint noted that one of
`Omnicare’s attorneys had warned that a particular con-
`tract “carrie[d] a heightened risk” of liability under anti-
`kickback laws. Id., at 225 (emphasis deleted). At the
`
`same time, the Funds made clear that in light of §11’s
`strict liability standard, they chose to “exclude and dis-
`claim any allegation that could be construed as alleging
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`fraud or intentional or reckless misconduct.” Id., at 273.
`
`The District Court granted Omnicare’s motion to dis-
`
`miss. See Civ. No. 2006–26 (ED Ky., Feb. 13, 2012), App.
`to Pet. for Cert. 28a, 38a–40a, 2012 WL 462551, *4–*5. In
`
`the court’s view, “statements regarding a company’s belief
`as to its legal compliance are considered ‘soft’ information”
`and are actionable only if those who made them “knew
`
`[they] were untrue at the time.” App. to Pet. for Cert. 38a.
`
`The court concluded that the Funds’ complaint failed to
`meet that standard because it nowhere claimed that “the
`
`
`company’s officers knew they were violating the law.” Id.,
`at 39a. The Court of Appeals for the Sixth Circuit re-
`versed. See 719 F. 3d 498 (2013). It acknowledged that
`
`the two statements highlighted in the Funds’ complaint
`
`expressed Omnicare’s “opinion” of legal compliance, rather
`Id., at 504 (quoting In re Sofamor
`than “hard facts.”
`
`
`Danek Group Inc., 123 F. 3d 394, 401–402 (CA6 1997)).
`But even so, the court held, the Funds had to allege only
`that the stated belief was “objectively false”; they did not
`need to contend that anyone at Omnicare “disbelieved [the
`
`opinion] at the time it was expressed.” 719 F. 3d, at 506
`
`(quoting Fait v. Regions Financial Corp., 655 F. 3d 105,
`110 (CA2 2011)).
`
`We granted certiorari, 571 U. S. ___ (2014), to consider
`
`how §11 pertains to statements of opinion. We do so in
`two steps, corresponding to the two parts of §11 and the
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`

`

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`5
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`Cite as: 575 U. S. ____ (2015)
`
`Opinion of the Court
`two theories in the Funds’ complaint. We initially address
`the Funds’ claim that Omnicare made “untrue state-
`ment[s] of . . . material fact” in offering its views on legal
`compliance. §77k(a); see App. 273–274. We then take up
`
`the Funds’ argument that Omnicare “omitted to state a
`
`material fact . . . necessary to make the statements [in its
`registration filing] not misleading.” §77k(a); see App.
`
`273–274. Unlike both courts below, we see those allega-
`tions as presenting different issues.1 In resolving the first,
`we discuss when an opinion itself constitutes a factual
`
`misstatement. In analyzing the second, we address when
`
`an opinion may be rendered misleading by the omission of
`discrete factual representations. Because we find that the
`Court of Appeals applied the wrong standard, we vacate
`its decision.
`
`——————
` 1In his concurrence, JUSTICE THOMAS contends that the lower courts’
`
`erroneous conflation of these two questions should limit the scope of our
`
`
` review: We should say nothing about omissions, he maintains, because
`that issue was not pressed or passed on below. We disagree. Although
`
`
`the Funds could have written a clearer complaint, they raised a discrete
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` omissions claim. See, e.g., App. 191 (“[T]he Company’s 2005 Registra-
` tion Statement . . . omitted material information that was . . . necessary
`
`to make the Registration Statement not misleading”); id., at 273 (“The
`
`Registration Statement . . . omitted to state facts necessary to make the
`
`statements made not misleading, and failed to adequately disclose
`material facts as described above”). The lower courts chose not to
`address that claim separately, but understood that the complaint
`
` alleged not only misstatements but also omissions. See App. to Pet. for
`Cert. 38a (describing the Funds’ claims as relating to “misstate-
`ments/omissions” and dismissing the lot as “not actionable”); 719 F. 3d,
`
`at 501 (giving a single rationale for reversing the District Court’s
`dismissal of the Funds’ claims “for material misstatements and omis-
`sions”). And the omissions issue was the crux of the parties’ dispute
`
`before this Court. The question was fully briefed by both parties (plus
`
`the Solicitor General), and omissions played a starring role at oral
`
`argument. Neither in its briefs nor at argument did Omnicare ever
`object that the Funds’ omissions theory had been forfeited or was not
`properly before this Court. We therefore see no reason to ignore the
`
`issue.
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`

`

`6
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` OMNICARE, INC. v. LABORERS DIST. COUNCIL
`CONSTR. INDUSTRY PENSION FUND
`
`Opinion of the Court
`
`
` II
`The Sixth Circuit held, and the Funds now urge, that a
`
`statement of opinion that is ultimately found incorrect—
`even if believed at the time made—may count as an “un-
`true statement of a material fact.” 15 U. S. C §77k(a); see
`
`719 F. 3d, at 505; Brief for Respondents 20–26. As the
`Funds put the point, a statement of belief may make an
`implicit assertion about the belief ’s “subject matter”: To
`
`
`say “we believe X is true” is often to indicate that “X is in
`fact true.” Id., at 23; see Tr. of Oral Arg. 36. In just that
`
`way, the Funds conclude, an issuer’s statement that “we
`
`believe we are following the law” conveys that “we in fact
`
`are following the law”—which is “materially false,” no
`
`matter what the issuer thinks, if instead it is violating an
`anti-kickback statute. Brief for Respondents 1.
`But that argument wrongly conflates facts and opinions.
`
`
`A fact is “a thing done or existing” or “[a]n actual happen-
`ing.” Webster’s New International Dictionary 782 (1927).
`
`An opinion is “a belief[,] a view,” or a “sentiment which the
`mind forms of persons or things.” Id., at 1509. Most
`
`
`important, a statement of fact (“the coffee is hot”) expresses
`
` certainty about a thing, whereas a statement of opinion
`(“I think the coffee is hot”) does not. See ibid. (“An opin-
` ion, in ordinary usage . . . does not imply . . . definiteness
`
`. . . or certainty”); 7 Oxford English Dictionary 151 (1933)
`(an opinion “rests[s] on grounds insufficient for complete
`
`demonstration”). Indeed, that difference between the two
`is so ingrained in our everyday ways of speaking and
`
`thinking as to make resort to old dictionaries seem a mite
`silly. And Congress effectively incorporated just that
`distinction in §11’s first part by exposing issuers to liabil-
`
`ity not for “untrue statement[s]” full stop (which would
`have included ones of opinion), but only for “untrue state-
`ment[s] of . . . fact.” §77k(a) (emphasis added).
`
`
`Consider that statutory phrase’s application to two
`hypothetical statements, couched in ways the Funds claim
`
`

`

`7
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` Cite as: 575 U. S. ____ (2015)
`
`Opinion of the Court
`are equivalent. A company’s CEO states: “The TVs we
`
`manufacture have the highest resolution available on the
`market.” Or, alternatively, the CEO transforms that
`factual statement into one of opinion: “I believe” (or “I
`
`think”) “the TVs we manufacture have the highest resolu-
`tion available on the market.” The first version would be
`
`an untrue statement of fact if a competitor had introduced
`
`a higher resolution TV a month before—even assuming
`
`the CEO had not yet learned of the new product. The
`
`CEO’s assertion, after all, is not mere puffery, but a de-
`terminate, verifiable statement about her company’s TVs;
`
`and the CEO, however innocently, got the facts wrong.
`
`But in the same set of circumstances, the second version
`would remain true. Just as she said, the CEO really did
`believe, when she made the statement, that her company’s
`
`TVs had the sharpest picture around. And although a
`plaintiff could later prove that opinion erroneous, the
`words “I believe” themselves admitted that possibility,
`thus precluding liability for an untrue statement of fact.
`That remains the case if the CEO’s opinion, as here, con-
`cerned legal compliance.
`If, for example, she said, “I
`believe our marketing practices are lawful,” and actually
`
`did think that, she could not be liable for a false statement
`of fact—even if she afterward discovered a longtime viola-
`
`tion of law. Once again, the statement would have been
`
`true, because all she expressed was a view, not a certainty,
`about legal compliance.
`
`That still leaves some room for §11’s false-statement
`provision to apply to expressions of opinion. As even
`Omnicare acknowledges, every such statement explicitly
`
`affirms one fact: that the speaker actually holds the stated
`belief. See Brief for Petitioners 15–16; W. Keeton, D.
`Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the
`Law of Torts §109, p. 755 (5th ed. 1984) (Prosser and
`
`Keeton) (“[A]n expression of opinion is itself always a
`statement of . . . the fact of the belief, the existing state of
`
`

`

`8
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`OMNICARE, INC. v. LABORERS DIST. COUNCIL
`
`CONSTR. INDUSTRY PENSION FUND
`
`Opinion of the Court
`
`mind, of the one who asserts it”). For that reason, the
`
`CEO’s statement about product quality (“I believe our TVs
`have the highest resolution available on the market”)
`would be an untrue statement of fact—namely, the fact of
`her own belief—if she knew that her company’s TVs only
`placed second. And so too the statement about legal com-
`pliance (“I believe our marketing practices are lawful”)
`would falsely describe her own state of mind if she thought
`her company was breaking the law. In such cases, §11’s
`
`first part would subject the issuer to liability (assuming
`
`the misrepresentation were material).2
`
`
`In addition, some sentences that begin with opinion
`words like “I believe” contain embedded statements of
`fact—as, once again, Omnicare recognizes. See Reply
`
`Brief 6. Suppose the CEO in our running hypothetical
`said: “I believe our TVs have the highest resolution avail-
`able because we use a patented technology to which our
`
`competitors do not have access.” That statement may be
`
`read to affirm not only the speaker’s state of mind, as
`——————
`2Our decision in Virginia Bankshares, Inc. v. Sandberg, 501 U. S.
`1083 (1991), qualifies this statement in one respect. There, the Court
`
`considered when corporate directors’ statements of opinion in a proxy
`solicitation give rise to liability under §14(a) of the Securities Exchange
`Act, 15 U. S. C. §78n(a), which bars conduct similar to that described in
`§11. In discussing that issue, the Court raised the hypothetical possi-
`
`bility that a director could think he was lying while actually (i.e.,
`accidentally) telling the truth about the matter addressed in his opin-
`ion. See Virginia Bankshares, 501 U. S., at 1095–1096. That rare set
`
`of facts, the Court decided, would not lead to liability under §14(a). See
`
`ibid. The Court reasoned that such an inadvertently correct assess-
`ment is unlikely to cause anyone harm and that imposing liability
`merely for the “impurities” of a director’s “unclean heart” might pro-
`
`
`voke vexatious litigation. Id., at 1096 (quoting Stedman v. Storer, 308
`
`F. Supp. 881, 887 (SDNY 1969)). We think the same is true (to the
`
`
`extent this scenario ever occurs in real life) under §11. So if our CEO
`did not believe that her company’s TVs had the highest resolution on
`
`the market, but (surprise!) they really did, §11 would not impose
`
`liability for her statement.
`
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`

`9
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` Cite as: 575 U. S. ____ (2015)
`
`Opinion of the Court
`
` described above, but also an underlying fact: that the
`company uses a patented technology. See Virginia Bank-
`shares, Inc. v. Sandberg, 501 U. S. 1083, 1109 (1991)
`(SCALIA, J., concurring in part and concurring in judg-
`
`ment) (showing that a statement can sometimes be “most
`fairly read as affirming separately both the fact of the
`[speaker’s] opinion and the accuracy of the facts” given to
`
`support or explain it (emphasis deleted)). Accordingly,
`
`liability under §11’s false-statement provision would
`follow (once again, assuming materiality) not only if the
`speaker did not hold the belief she professed but also if the
`supporting fact she supplied were untrue.
`But the Funds cannot avail themselves of either of those
`
`ways of demonstrating liability. The two sentences to
`which the Funds object are pure statements of opinion: To
`simplify their content only a bit, Omnicare said in each
`
`that “we believe we are obeying the law.” And the Funds
`do not contest that Omnicare’s opinion was honestly held.
`
`Recall that their complaint explicitly “exclude[s] and
`disclaim[s]” any allegation sounding in fraud or deception.
`
`App. 273. What the Funds instead claim is that Omni-
`
`care’s belief turned out to be wrong—that whatever the
`
`company thought, it was in fact violating anti-kickback
`laws. But that allegation alone will not give rise to liabil-
`ity under §11’s first clause because, as we have shown, a
`sincere statement of pure opinion is not an “untrue state-
`ment of material fact,” regardless whether an investor can
`ultimately prove the belief wrong. That clause, limited as
`it is to factual statements, does not allow investors to
`second-guess inherently subjective and uncertain assess-
`ments. In other words, the provision is not, as the Court
`of Appeals and the Funds would have it, an invitation to
`Monday morning quarterback an issuer’s opinions.
`
`
`

`

`10
`
`
`
`OMNICARE, INC. v. LABORERS DIST. COUNCIL
`
`CONSTR. INDUSTRY PENSION FUND
`
`Opinion of the Court
`
`
` III
`
`A
`
`That conclusion, however, does not end this case be-
`
`cause the Funds also rely on §11’s omissions provision,
`alleging that Omnicare “omitted to state facts necessary”
`
`to make its opinion on legal compliance “not misleading.”
`
`App. 273; see §77k(a).3 As all parties accept, whether a
`
`statement is “misleading” depends on the perspective of a
`reasonable investor: The inquiry (like the one into materi-
`ality) is objective. Cf. TSC Industries, Inc. v. Northway,
`Inc., 426 U. S. 438, 445 (1976) (noting that the securities
`laws care only about the “significance of an omitted or
`misrepresented fact to a reasonable investor”). We there-
`fore must consider when, if ever, the omission of a fact can
`make a statement of opinion like Omnicare’s, even if
`literally accurate, misleading to an ordinary investor.
`Omnicare claims that is just not possible. On its view,
`
`no reasonable person, in any context, can understand a
`pure statement of opinion to convey anything more than
`
`the speaker’s own mindset. See Reply Brief 5–6. As long
`as an opinion is sincerely held, Omnicare argues, it cannot
`mislead as to any matter, regardless what related facts
`the speaker has omitted. Such statements of belief (con-
`cludes Omnicare) are thus immune from liability under
`
`§11’s second part, just as they are under its first.4
`——————
`3Section 11’s omissions clause also applies when an issuer fails to
`
`
` make mandated disclosures—those “required to be stated”—in a
`registration statement. §77k(a). But the Funds do not object to Om-
`nicare’s filing on that score.
`4In a different argument that arrives at the same conclusion, Om-
`nicare maintains that §11, by its terms, bars only those omissions that
`
`make statements of fact—not opinion—misleading. See Reply Brief 3–
`5. The language of the omissions clause, however, is not so limited. It
`
`
`asks whether an omitted fact is necessary to make “statements” in “any
`part of the registration statement” not misleading; unlike in §11’s first
`
`
`clause, here the word “statements” is unmodified, thus including both
`
`fact and opinion. In any event, Omnicare’s alternative interpretation
`
`
`
`
`
`

`

`
`
`11
`
`
`Cite as: 575 U. S. ____ (2015)
`
`
`Opinion of the Court
`That claim has more than a kernel of truth. A reason-
`
`able person understands, and takes into account, the differ-
`ence we have discussed above between a statement of fact
`and one of opinion. See supra, at 6–7. She recognizes the
`import of words like “I think” or “I believe,” and grasps
`
`that they convey some lack of certainty as to the state-
`ment’s content. See, e.g., Restatement (Second) of Con-
`tracts §168, Comment a, p. 456 (1979) (noting that a
`
`statement of opinion “implies that [the speaker] . . . is not
`certain enough of what he says” to do without the qualify-
`ing language). And that may be especially so when the
`phrases appear in a registration statement, which the
`
`reasonable investor expects has been carefully word-
`smithed to comply with the law. When reading such a
`document, the investor thus distinguishes between the
`sentences “we believe X is true” and “X is true.” And
`
`because she does so, the omission of a fact that merely
`
`rebuts the latter statement fails to render the former
`
`misleading. In other words, a statement of opinion is not
`misleading just because external facts show the opinion to
`
`be incorrect. Reasonable investors do not understand such
`
`statements as guarantees, and §11’s omissions clause
`therefore does not treat them that way.
`But Omnicare takes its point too far, because a reason-
`
`able investor may, depending on the circumstances, under-
`
`stand an opinion statement to convey facts about how the
`speaker has formed the opinion—or, otherwise put, about
`
` the speaker’s basis for holding that view. And if the real
`facts are otherwise, but not provided, the opinion state-
`ment will mislead its audience. Consider an unadorned
`——————
`
`succeeds merely in rephrasing the critical issue. Omnicare recognizes
`that every opinion statement is also a factual statement about the
`speaker’s own belief. See supra, at 7–8. On Omnicare’s view, the
`question thus becomes when, if ever, an omission can make a statement
`of that fact misleading to an ordinary investor. The following analysis
`applies just as well to that reformulation.
`
`

`

`12
`
`
`
`OMNICARE, INC. v. LABORERS DIST. COUNCIL
`CONSTR. INDUSTRY PENSION FUND
`
`Opinion of the Court
`
`statement of opinion about legal compliance: “We believe
`
`our conduct is lawful.” If the issuer makes that statement
`without having consulted a lawyer, it could be misleadingly
`
`incomplete. In the context of the securities market, an
`
`investor, though recognizing that legal opinions can prove
`wrong in the end, still likely expects such an assertion to
`rest on some meaningful legal inquiry—rather than, say,
`
`on mere intuition, however sincere.5 Similarly, if the
`issuer made the statement in the face of its lawyers’ con-
`trary advice, or with knowledge that the Federal Govern-
`ment was taking the opposite view, the investor again has
`
`cause to complain: He expects not just that the issuer
`
`believes the opinion (however irrationally), but that it
`fairly aligns with the information in the issuer’s posses-
`sion at the time.6 Thus, if a registration statement omits
`material facts about the issuer’s inquiry into or knowledge
`concerning a statement of opinion, and if those facts
`conflict with what a reasonable investor would take from
`the statement itself, then §11’s omissions clause creates
`
`liability.7
`——————
`5 In some circumstances, however, reliance on advice from regulators
`or consistent

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