Did the Supreme Court's Omnicare Decision Create a Distinction Without a Difference?

In the year following the Supreme Court’s decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 135 S. Ct. 1318 (2015), which clarified the circumstances under which an opinion may give rise to liability under the Securities Act, much has been written about the “new” standards for such claims. In the decision, the Court confirmed that a mistaken opinion cannot be considered a misstatement so long as it was honestly held (as multiple circuits had already held), but the Court also held that an opinion might create liability (under an omission theory) if a company fails to disclose facts about the basis for the opinion that conflict with a reasonable investor’s expectations. The latter part of the decision received attention for seemingly creating a second avenue of opinion liability (some even suggested that this second avenue would create fact issues precluding dismissal at the pleading stage).