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ARTICLE · 22 SEPTEMBER 2022

What's Misleading About "Leading"?

Allen Matkins Leck Gamble Mallory & Natsis LLP
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In this post yesterday, John Jenkins took aim at issuer's that characterize themselves as "leading". He notes that the SEC Staff has and continues to comment on such characterizations.

United StatesCorporate/Commercial Law

In this post yesterday, John Jenkins took aim at issuer's that characterize themselves as "leading". He notes that the SEC Staff has and continues to comment on such characterizations. I think that in some cases these comments are a waste of time and do not protect investors because the present participle "leading" amounts to little more than an opinion and/or puffery.

InOmnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 135 S. Ct. 1318, 191 L. Ed. 2d 253, 575 US 175 (2105), the U.S. Supreme Court held that "a sincere statement of pure opinion is not an 'untrue statement of material fact,' regardless whether an investor can ultimately prove the belief wrong". The statement that XYZ corporation is a "leading manufacturer of widgets" is devoid of any embedded facts because it is so vague . "Leading" in what respect - size, innovation, ESG or something else? Further, a company can be a leading company without beingthe leader. Compare

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