Americans take as given the right to hold and express opinions. So it may come as a surprise to many that the federal securities laws impose civil liability for statements of opinion. It may be even more surprising that strict liability arises for sincerely-held statements of opinion that turn out to be incorrect, at least according to the Sixth Circuit Court of Appeals in a decision that is now under review by the Supreme Court.

Yesterday, the Supreme Court heard oral arguments in Omnicare Inc. v. The Laborers District Council Construction Industry Pension Fund, No. 13-435, to decide the standard of liability for statements of opinion. Is it enough for a plaintiff to show that a statement of opinion was incorrect or lacked a reasonable basis? Or should a plaintiff also be required to show that the opinion was subjectively false? Liability under that standard would turn on whether the speaker sincerely believed the opinion or not.