Some harbors are safer than others...
Filling a prospectus with risk factors won't always protect you. Remember, risk warnings are all about uncertainty, and uncertainty -- at least in this context -- means uncertainty about the future.
If you know, or should know, that something you described as a risk factor in a registration statement, prospectus, or other offering document is happening (present tense, ie, "Houston, we have a problem"), then the bespeaks caution doctrine is a losing argument for the defense.
A safe harbor...
PLEASE, read the parenthetical from the Prudential case. If you do, then you will know all you need to know about the bespeaks caution doctrine.
In re Prudential Secs. Inc. P'ships Litig., 930 F.Supp. 68, 72 (S.D.N.Y.1996) ("The doctrine of bespeaks caution provides no protection to someone who warns his hiking companion to walk slowly because there might be a ditch ahead when he knows with near certainty that the Grand Canyon lies one foot away.").
By Brett Sherman, Managing Attorney, The Sherman Law Firm
By Brett Sherman
