Backman v. Polaroid Corp

In Backman v. Polaroid Corp., 910 F.2d 10 (1st Cir.1990) (en banc), the Court held that there was no duty to disclose to market buyers information simply because it was material, or to amplify what was said, unless the omitted matter caused what was said to be misleading. In that case, the Court considered claims regarding misleading statements made in reference to the Polavision camera. The Court concluded that the company's disclosure "that Polavision was being sold below cost was not misleading by reason of not saying how much below. Nor was it misleading not to report the number of sales, or that they were below expectations." Id. The Court contrasted those statements with another allegation, namely, that the principals knew that the Polavision camera was "a commercial failure," but stated only that earnings were negative; we noted that the negative-earnings statement "might well be found to be a material misrepresentation by half-truth and incompleteness." Id. Although the Court ultimately dismissed the "commercial failure" claim as not supported by the allegations of the complaint, the distinction between our treatment of these two allegations is instructive, and it is mirrored again in the Fifth Circuit's decision in Lormand v. U.S. Unwired, Inc., 565 F.3d 228 (5th Cir.2009).