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LABOURERS' PENSION FUND OF CENT. & E. CAN. v. CVS HEALTH CORP.

Index No. 651700/19. Appeal No. 13271. Case No. 2020-0289.

192 A.D.3d 424 (2021)

144 N.Y.S.3d 16

2021 NY Slip Op 01327

Labourers' Pension Fund of Central & Eastern Canada, Respondent, v. CVS Health Corporation et al., Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided March 4, 2021.

Attorney(s) appearing for the Case

Lupkin PLLC, New York ( Jonathan D. Lupkin of counsel), and Williams & Connolly LLP, Washington DC ( Steven M. Farina , Michael J. Mestitz and Amanda M. MacDonald of the Bar of the District of Columbia, admitted pro hac vice, of counsel), for appellants.

Labaton Sucharow LLP, New York ( Jonathan Gardner of counsel), for respondent.

Concur—Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.

Having disclaimed any claim based on fraud or deceit, and having expressly based the claim on negligence and strict liability, plaintiff could not state a claim for a dishonestly held opinion under section 11 of the 1933 Securities Act (15 USC § 77k) (Omnicare, Inc. v Laborers Dist. Council Constr. Industry Pension Fund, 575 U.S. 175 [2015]). Plaintiff failed to plead an actionable opinion under the embedded-facts prong of Omnicare, because it did not identify...

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