Omnicare, the nation’s largest provider of pharmacy services to nursing homes, filed a registration statement containing several sentences of which the following is representative: “We believe our contract arrangements with .  .  . pharmaceutical suppliers .  .  . are in compliance with applicable . . . laws.” Those contracts called for rebates, which were ultimately determined illegal, resulting in losses to the company. The pension fund purchased stock in the IPO and later sued, alleging that the company’s opinion statement about legal compliance gave rise to liability under § 11 of the 1933 Act. 

Questions 

1. Describe the pension fund’s argument as to why Omnicare incurred Section 11 liability because of: 

a. What it said. 

b. What it did not say. 

2. How did the Court respond to each of the pension fund’s arguments?