The Second Circuit issued an important decision recently in In re Sanofi Securities Litigation applying the Supreme Court’s landmark Omnicare decision. In Omnicare, the Supreme Court held that a statement of opinion, even if honestly believed, could be actionable if the issuer failed to disclose material facts that conflict with what a reasonable investor would, in context, expect about the issuer’s basis for the opinion. In Sanofi, the Second Circuit emphasized that a reasonable investor should not expect an issuer to disclose every fact that might undermine or conflict with the opinion expressed. Shareholder plaintiffs who challenge opinions under an omissions theory must identify particular omitted facts showing that the opinion did not fairly align with information in the issuer’s possession. The Second Circuit’s analysis in Sanofi reinforces the Supreme Court’s admonition that showing an opinion is misleading due to alleged omissions “is no small task for an investor.”

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