Pure Omissions After Macquarie
Where courts now draw the Rule 10b-5(b) line between actionable half-truths and non-actionable pure omissions after Macquarie v. Moab Partners — from the Sixth Circuit’s reclassification of half-truths as misrepresentations to district courts sorting redactions and silence at the motion-to-dismiss stage.
Sorting Half-Truths from Pure Omissions Under Rule 10b-5(b)
The Supreme Court’s rule is categorical: "Pure omissions are not actionable under Rule 10b–5(b)." A pure omission "occurs when a speaker says nothing, in circumstances that do not give any particular meaning to that silence," while half-truths are "representations that state the truth only so far as it goes, while omitting critical qualifying information." Because "the Rule requires identifying affirmative assertions (i.e., ‘statements made’) before determining if other facts are needed to make those statements ‘not misleading,’" the Court held that "the failure to disclose information required by Item 303 can support a Rule 10b–5(b) claim only if the omission renders affirmative statements made misleading" Macquarie Infrastructure Corp. v. Moab Partners, L. P., 601 U.S. 257 (2024). The Court flagged the escape valves itself: "private parties remain free to bring claims based on Item 303 violations that create misleading half-truths," and "the SEC retains authority to prosecute violations of its own regulations."
The Sixth Circuit turned that taxonomy into doctrine with certification-stage consequences. Diane Owens v. FirstEnergy Corporation, No. 23-3947 (6th Cir. Aug 13, 2025) held that "half-truths and the generic, aspirational corporate statements involved here are both species of misrepresentations" — "quite different from the standing mute seen in Affiliated Ute." For mixed cases the court prescribed a two-step analysis: classify each claim, then ask whether any of four factors — including that "the alleged omissions are only the inverse of the misrepresentations" or "have no standalone impact apart from any alleged misrepresentations" — makes the case primarily misrepresentation-based. "If even one of these four factors is satisfied," Basic governs; "[i]f and only if none" are, Affiliated Ute applies. The paradigm pure omission is now vanishingly narrow: a company that "fails entirely to file an MD&A."
District courts are applying the same line at the pleading stage. In Semerak v. VNET Group, Inc., No. 1:23-cv-11187 (S.D.N.Y. Sep 15, 2025) the court — granting in part and denying in part a motion to dismiss — reiterated that under Macquarie half-truths "remain actionable under SEC Rule 10b-5" because the Rule "requires disclosure of information necessary to ensure that statements already made are clear and complete." Redacting the trigger price and default terms from a facility agreement attached to a Schedule 13D fell on the actionable side: "While these redactions are technically ‘omissions,’ they are so precisely targeted to material information in the Facility Agreement as to render the filed documents misleading."
The drafting lesson runs in both directions. Plaintiffs survive dismissal by tethering every omission to an identified statement it makes misleading — selective redactions, incomplete risk factors, and topic-opening disclosures all still work — while standalone Item 303 silence no longer states a private claim. Defendants should note the trade-off FirstEnergy exposes: winning the "misrepresentation" label defeats Affiliated Ute but concedes a statement for Basic purposes at class certification.