Omnicare v. Indiana State District Council and Its Rational Basis Test for Allowing for Opinion Statements to Be a Misleading Fact or Omission Under Section 11 of the Securities Act of 1933

This article examines when statements in a registration statement, couched as opinion, can and cannot be considered to be misstatements of material fact that could lead to liability under Section 11 (and potentially other sections) of the Securities Act. The rest of this paper is formatted as follows. We review the Omnicare case, followed by the key cases in the Second, Third, Ninth, and Sixth Circuit Courts of Appeals. The Second, Third, and Ninth Circuits have all required that, in order for there to be an actionable claim under Section 11, the plaintiff must plead not only that the statement or omission was false, but also that the defendant had subjective knowledge that its opinion was false. The Sixth Circuit, although later reversed by the Supreme Court, applied a strict liability interpretation of Section 11 and required only that the fact or omission be false or misleading. The split decisions among the circuits may be the reason that the Supreme Court granted certiorari. Then, we explain the implications of these decisions to future registrants and to professionals preparing opinions that are to be included in registration statements. This article is important to future registrants and opining professionals because of their liability implications. We conclude with the assumption that future cases will decide how to apply the new rational basis test created by the Supreme Court in interpreting when an opinion statement becomes a misstatement of material fact, or leads to an omission that renders a registration statement false or misleading in violation of Section 11

I Can't Get No Satisfaction: The Power of Perceived Differences in Employee Retention and Turnover

This study explores the role of salary raises and the perception of employees of these salary raises on employees' intended retention and turnover. By using a unique survey data set from an American university, this study investigates a novel hypothesis that faculty perceptions of salary raises, relative to their perceptions of other faculty members' assessments of the raises, influences their labor supply. Using both Ordered Probit and OLS modelling frameworks, we focus on the impact of salary raises and the relative perception of these raises on intended labor supply behavior. We explore a hypothesis that a mismatch between one's ranking of the salary raise and the perception of others' rankings causes dissatisfaction. Our results provide evidence that salary raises themselves are effective monetary tools to reduce turnover; however, our results also suggest that relative deprivation as a comparison of one's own perceptions of a salary raise with others affects employee retention. We find that employees who have less favorable perceptions of salary adjustments, compared to what they believe their colleagues think, are more likely to seek another employer, holding their own perception of raises constant. Conversely, more favorable views of salary raises, compared to how faculty members think other's perceived the salary raises, does not have a statistically significant impact on retention. Our results indicate that monetary rewards in the form of salary raises do impact employee retention; however, perception of fairness of these salary raises is also as important as the actual raises. Given the high cost of job turnover, these findings suggest that employers would benefit from devoting resources toward ensuring that salary- and raise-determining procedures are generally perceived by the vast majority of employees as being fair. This is the first study that explores the employee satisfaction with salary raises relative to perceptions of other employees' satisfaction with salary raises, and intended labor supply in an American university

Labor Supply and Productivity Responses to Non-Salary Benefits: Do They Work? If So, at What Level Do They Work Best?

This study explores the impact of a particular low marginal-cost employee benefit on employees' intended retention and performance. By utilizing a unique data set constructed by surveying full-time faculty and staff members at a public university in the United States, we study the impact of this employee benefit on faculty and staff performance and retention. We focus on the impact of reduction in dependent college tuition at various levels on employees' intentions to work harder and stay at their current job by using both OLS and Ordered Probit models. We also simulate the direct opportunity cost (reduction in revenue) in dollars and as a percent of total budgeted revenue to facilitate administrative decision making. The results provide evidence that for institutions where employee retention and productivity are a priority, maximizing or offering dependent college tuition waiver may be a relatively low-cost benefit to increase intended retention and productivity. In addition, the amount of the tuition waiver, number of dependents and annual salary are statistically significant predictors of intended increased productivity and intent to stay employed at the current institution. Employee retention and productivity is a challenge for all organizations. Although pay, benefits, and organizational culture tend to be key indicators of job satisfaction, little attention is given to specific types of benefits. This study is the first comprehensive attempt to explore the relationship between the impact of this low-cost employee benefit and employee performance and retention in a higher education institution in the United States

Maximizing Ponzi Loss Deductions for Estate and Income Tax Purposes: Are Taxpayers Better Off Dead?

There is a long history of cases interpreting whether a theft loss deduction for securities fraud is allowable for personal income taxes. The cases require that for a theft loss to be actionable as such, it would have to meet the requirements of the common law definition of theft in the U.S. state in which it occurred. This generally requires direct privity between the person claiming the loss and the person who committed the theft. Because most securities transactions are brokered, the direct privity is lost and a theft loss deduction is denied in favor a capital loss. Recently, in a case of first impression, the Tax Court was presented with a similar issue involving the worth of assets for estate taxes. Instead of using the reasoning presented in income tax cases, the Tax Court allowed a theft loss deduction on estate taxes where a Ponzi scheme was uncovered while the estate owned a limited liability company. The sole assets of the company were shares of the security that was involved in the Ponzi scheme. This Article examines the history of the privity requirement for deducting a theft loss for income taxes and how that reasoning now differs from the tax treatment for estate taxes. The Article concludes that there should not be a difference in treatment and that direct privity should not be required for either income or estate taxes

Developing an Assessment Program: From Zero to Sixty

In 2016, the University of Florida George A. Smathers Libraries created a new position and hired an Assessment Librarian. Five years later, the program is highly agile and supports a larger culture of assessment. This talk will outline the steps, and missteps, as well as the scope of a program that includes an Assessment Advisory Team and multiple sub-teams. The program supports grant applications, IRB submissions, assessment resource recommendations, user engagement, usability and user-experience studies, public service assessment, dashboard development, and continues to expand. Attendees will gain a deeper understanding of the key steps for implementing a successful program, of the elements of UF’s current assessment program, and of what the horizon looks like as we build infrastructure to support local initiatives. The presenters will utilize interactive technologies to engage the audience in the talk and to share more widely their own institution’s unique assessment path

Hair of the Frog and other Empty Metaphors: The Play Element in Figurative Language

In this essay we discuss a class of apparently metaphorical idioms, exemplified by fine as frog\u27s hair, that do not afford any obvious interpretation, and appear to have originated, at least in part, in language play. We review recent trends in both play theory and metaphor theory, and show that a playful approach to language is often an important element in the use and understanding of metaphors (and idioms generally), even when metaphors can be readily interpreted by means of a vehicle-to-topic mapping. Based on this evidence we call for a more deliberate inclusion of language play in metaphor theory and analysis

After Goeller v. United States, Can the Theft Loss Treatment Now Be Applied to Investments When Corporate Deception Is Present?

Traditionally, the theft loss deduction for Federal income tax was limited in several ways. The limitations included requiring that the theft be considered a theft under the state law in which the theft occurred and that there be direct privity between the person committing the theft and the person against whom the theft occurred. The restrictions have made it hard to use the theft loss deduction in most securities fraud cases. This Article examines the history of the theft loss deduction and recent changes that may show a relaxing of some of these restrictions, and how these changes may impact allowing for the theft loss deduction in securities fraud cases