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March 26th, 2015
“MY BIG FAT GREEK WEDDING”: A Securities Law Trap
We frequently see private placement memoranda, seeking to raise capital for films, which refer to independent film success stories such as "My Big Fat Greek Wedding," "Little Miss Sunshine," or other independent films which became box office hits.
The recent US Supreme Court decision in Omnicare, Inc. v. Laborers District Counsel Construction Industry Pension Fund should make all producers think twice about whether, or how, to include these success stories.
In the Omnicare case, the defendant had included in a registration statement opinions that it was legally complying with laws regarding its practice of accepting rebates from drug companies in connection with its business of providing pharmacy services for residents of nursing homes. Even though Omnicare noted in the registration statement, near its statements of belief that it was legally compliant, that state and federal enforcement actions could adversely affect its business, the Court found a potential violation of Section 11 of the 1933 Securities Act: there was an issue for trial about whether Omnicare could hold a reasonable belief that it was legally compliant in light of such federal and state enforcement actions. The Supreme Court therefore reversed a decision by the Sixth Circuit in favor of Omnicare, and sent the case back for further proceedings.
Effect of Omnicare on Private Placements in Entertainment Ventures
So, what does drug company legal compliance have to do with successful independent films?
The heart of the Supreme Court decision is in Section III of the opinion in which it quotes language from Section 11 from the '33 Act, finding potential liability if the issuer " 'omitted to state facts necessary' to make its opinion on legal compliance 'not misleading.' " In effect, the Supreme Court is getting into the murky area of what is a reasonable basis for having a belief.
Given widespread knowledge in the film industry about the number of independent films which fail to return investments to the film's investors, this case suggests that a film producer, in a private placement memo, could face securities law liability if, when discussing the success of recent independent films, the producer does not also include information about films which are less successful or a complete failure.
These discussions can take any number of different forms, depending on how the private placement memo discusses the "success" stories.
This Supreme Court decision, however, is a warning to film producers using private placement memos (or Internet-based offering documents seeking accredited investors, which are now permitted under Title II of the JOBS Act and related SEC regulations): Examples of independent film successes in a private placement memo are no longer just puffery.
If you have any questions about the Omnicare case, or about other entertainment finance issues, please contact Thomas Selz at (212) 826 5535 or email@example.com, Alan Sacks at (212) 705 4857 or firstname.lastname@example.org, or Hayden Goldblatt at (212) 705 4875 or email@example.com. For more information about the Frankfurt Kurnit IP Finance Group, please click here.
Other Entertainment Law Alerts
New York City Reopens for Film and Television Production
On July 17, 2020 NYC Mayor Bill de Blasio announced that, with the City entering Phase Four of Reopening on Monday July 20th, 2020, film and television production in the City can restart again in earnest. Read more.
July 21 2020
Los Angeles County Authorizes Television, Film, and Music Production Resume on June 12, 2020 With Strict Regulations
On June 11, Los Angeles County approved a staged resumption of film and TV production beginning June 12, 2020. However, it comes with extensive regulations. Read more.
June 16 2020
California Will Permit Television, Film, and Music Production to Resume on June 12, 2020 Subject to County Public Health Approvals
As several production-heavy states announce the easing of stay-at-home orders and restrictions, the question of how to restart entertainment production in a safe manner has become paramount. Read more.
June 9 2020