'Corporate Puffery' Does Not Justify Shareholder Lawsuit

Omnicare, America's largest pharmaceutical provider for the elderly, was just trying to conduct business as usual. The company released a standard press statement in August 2005 saying it was working to adopt a new government program--Medicare Part D--and did not foresee any problems. A short time later, CEO Joel Gemunder said he felt confident the forthcoming transition would not harm the company.

But Omnicare did not properly educate its drug-plan suppliers on pharmacy care practices and ran into database problems related to the program. These errors cost the company $9.8 million during the switch to Plan D.

The Plan D mishap--coupled with instances of the company delivering questionable earnings reports and predictions--prompted a group of Omnicare shareholders to sue the company and its executives for Securities Act fraud, claiming they made false statements that led to stock drops.

On Oct. 21, a 6th Circuit panel mostly upheld the lower court's decision in Indiana State District Council of Laborers and HOD Carriers Pension and Welfare Fund v. Omnicare, dismissing nearly all of the plaintiffs' claims and sending one piece of the case back to the lower court for clarification.

"Gemunder's comments fall squarely within this realm of corporate puffery," wrote U.S. District Judge Richard Mills of Illinois, who sat on the panel, "as they do nothing more than vaguely predict positive future results, a claim so banal and ubiquitous that it cannot engender reliance by reasonable investors."

This case should comfort in-house counsel because the courts prevented shareholders from turning bad corporate news into a viable lawsuit, says Dewey & LeBoeuf Partner Harvey Kurzweil.

Plaintiffs' Problems

The Omnicare plaintiffs' complaint contained several different claims. Two of them involved forward-looking statements. The first was the Medicare Part D issue. The second was the allegation that positive financial predictions Gemunder made in 2006 misled shareholders because he did not acknowledge an ongoing contract dispute with one of Omnicare's suppliers. Omnicare publicly revealed the dispute a few months later.

Those two parts of the shareholders' case were doomed from the start, says Kurzweil, who represented Omnicare, because they only had routine, forward-looking statements as evidence.

"They were always in search of a theory as to why corporate bad news could be translated into a securities violation," he says. "The district court saw through it."

The 6th Circuit described the strategy as "alchemy," and Kurzweil says the plaintiffs' actions contradicted Congress' intent with the Securities and Exchange Act.

Mayer Brown Partner Timothy Bishop adds that the law does not require corporations to have perfect foresight when making public statements.

"Nobody ever intends for things to go wrong, but sometimes the market plays tricks on you, and you're not as prepared as you expected to be," he says.

Omnicare executives wisely protected themselves from liability by labeling their disclosures as predictions, says Thomas Gorman, chair of the securities litigation group at Porter Wright. He says all in-house counsel should make sure executives give similar disclaimers when making these kinds of statements.

"If you identify [statements] as forward-looking, and the company has some basis for the projection, it's very difficult to be found liable," he says.

In addition to attacking forward-looking statements, the plaintiffs seized on other allegedly misleading reports from the company. They argued that Omnicare violated Generally Accepted Accounting Principles (GAAP) by reporting falsely inflated revenue numbers for 2005 and early 2006. The plaintiffs said the reported earnings appeared higher than they really were because of bad accounting and failure to prepare for two multimillion-dollar settlements that followed government investigations.

"The court rejected this quite properly," Bishop says, because Omnicare never had to restate its financials and auditors signed off on them. Claiming Omnicare violated accounting rules when no one ever contested the numbers was a weak argument, Bishop adds.

Causation Complications

Beyond the "forward-looking statements" and accounting issues, the overarching principle of the ruling was the plaintiffs' inability to prove loss causation--that the disclosures actually caused a drop in stock price. Rule 10b-5 of the Securities and Exchange Act, under which the shareholders brought almost all of the suit's claims, requires plaintiffs to prove loss causation, but the plaintiffs never successfully argued that this had happened.

"Assuming that Gemunder's statements are otherwise actionable, loss causation is thoroughly lacking in this case," Judge Mills wrote in the decision.

However, the court remanded the plaintiffs' Securities Act Section 11 claim--which only affected the GAAP issue--back to trial court because loss causation is not necessary to create liability in such claims. The appeals court said the district court did not adequately address the relatively minor Section 11 issue. Smith says this part of the decision was necessary for clarification.

General counsel should be reassured by the Omnicare decision, knowing that "a highly respected appellate court has recognized that mere statements of optimism are not actionable," Kurzweil says. Because courts have begun successfully weeding out frivolous securities lawsuits such as this one, he says, "the pendulum may have shifted in favor of defendants."

Assistant Editor

Christopher Danzig

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