Third, the Kimmell court did not actually address whether future projections were actionable, but merely assumed that they were based on the procedural posture of the case and the issues addressed on appeal. Id. Finally, the Second Circuit noted that, “although the Appellate Division in Kimmell [implicitly] found that future prediction/projeetions could qualify as the basis for a negligent misrepresentation claim ..., that finding is contrary to the great weight of authority.” Id. The Court agrees with the Second Circuit’s analysis. The inquiry does not depend on whether the omission itself relates to a past or present fact. Instead, the relevant inquiry is whether the failure to disclose renders an existing statement of fact false or misleading. Cf. Metropolitan, 532 F.Supp.2d at 1290 (<HOLDING>). If this were not the case, almost any
recognizing the cause of action holding that an omission claim could not be maintained where plaintiff did not point to previous statements that were misleading without further disclosures holding that a duty to disclose arises whenever secret information renders prior public statements materially misleading holding analysts statements insufficient to satisfy particularity requirements because plaintiffs failed to identify with specificity the statements made by a particular defendant or describe how those statements were false or misleading holding that a cause of action based on an omission requires the plaintiff to show how an alleged omitted fact negates the truth of or renders misleading the statements actually made