Canada: Fraud On The Market Theory Revisited: The U.S. Supreme Court Upholds Presumed Reliance In Securities Class Actions But Provides Defendants New Avenue Of Attack

The United States Supreme Court recently released its long awaited opinion in Halliburton Co. v. Erica P. John Fund, Inc. There were two central questions before the Court: (1) could plaintiffs in a Rule 10b-5 action for misrepresentation invoke a rebuttable presumption of reliance; and (2) what rebuttal evidence could a defendant properly put forward at the class action certification stage. The Court was in essence being asked to revisit its controversial 1988 decision, Basic v. Levinson, 485 U.S. 224 (1988), where the Court first recognized that reliance in a securities fraud case could be presumed where shares were traded on an efficient market. By doing away with the need to prove individual reliance, the Court in Basic opened the door for plaintiffs to pursue securities fraud claims by way of class action suits. Some believed that the current Supreme Court might lean in a more business-friendly direction and abandon the presumed reliance doctrine. However, in a 6-3 decision, the Court reaffirmed the presumed reliance doctrine as established in Basic, but equipped defendants with an important new weapon to contest certification motions – the ability to rebut the presumption at the certification stage by leading direct evidence that the alleged misrepresentation had no impact on the price of shares.


In Halliburton, the plaintiff alleged that Halliburton deliberately made false statements. The plaintiff further alleged that Halliburton made a number of corrective disclosures that resulted in a drop in the stock price resulting in losses to investors.

In the United States, misrepresentations made in connection with the purchase or sale of a security are prohibited under the Securities Exchange Act. Under Rule 10b-5, which was enacted under section 10(b) of the Act, the plaintiff must prove that it relied on the misrepresentation in order to recover damages. Based on the U.S. Supreme Court's decision in Basic, reliance could be presumed in circumstances where the plaintiff could prove that the misrepresentations were publicly made and material, and that the market where the shares were traded was well developed and efficient. These elements were found to be common issues that can be decided on a class-wide basis and are therefore amenable to determination in a class action.

Reaffirming the Presumed Reliance Doctrine

The basis for the Court's recognition of presumed reliance in Basic was the "fraud on the market" theory which posits that in an efficient market all material information (including any misrepresentation) that is publicly disclosed is reflected in the share price. Therefore, an investor who purchases shares at a certain price is presumed to rely on all of the information that is reflected in that price, including the misrepresentation.

Halliburton challenged the validity of the "fraud on the market" theory arguing that (1) empirical evidence gathered since Basic demonstrates that markets are not efficient and therefore not all publicly available information is reflected in the share price; and (2) not all investors relied on the integrity of the share price in order to make investment decisions (e.g. value investors looked for discrepancies between the share price and the actual value of the company). The Court rejected both arguments.

With respect to the first argument the Court refused to wade into an academic debate among economists on the validity of the theory. Instead, the Court said it was relying on the more modest proposition that "market professionals generally consider most publicly announced material statements about companies, thereby affecting stock market prices."

The Court spent little time dismissing the second argument saying only that Basic was not premised on the fact that such value investors did not exist and that even value investors rely on market prices eventually incorporating publicly available information within a reasonable time and share prices not being distorted by fraud. As a result, the Court upheld the presumed reliance doctrine.

A New Tool for Defendants to Contest Certification

Although the Court reaffirmed the presumed reliance doctrine, the Court also held that defendants can put forward evidence of "a lack of price impact" at the certification stage. The Court held that "price impact" was an essential precondition for any Rule 10b-5 class action and went directly to the issue of whether common questions predominate over individual ones. Accordingly, the issue was appropriate to deal with at the certification stage.

The Court made it clear, however, that it was not requiring plaintiffs to prove "price impact", which in the Court's view would take away the presumption of reliance that is established when the plaintiff shows that the misrepresentation was made public, and the shares traded on an efficient market. Instead, it was giving defendants an opportunity to rebut that presumption by leading direct evidence of "a lack of price impact".

Implications for Canadian Securities Litigation

In Canada, the fraud on the market theory has not been adopted by the courts and the question of presumed or inferred reliance is often of limited importance because the provincial Securities Acts already provide for "deemed reliance" in both primary and secondary market claims. Nonetheless, plaintiffs in Canada still frequently assert common law misrepresentation claims on behalf of secondary market purchasers and plead that reliance should be inferred or presumed. One can expect that defendants will emphasize "price impact" when contesting such claims following Halliburton.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.