United States: Supreme Court Rejects Proving Loss Causation As A Requirement For Class Certification In Securities Fraud Class Actions

Overview

Last week, the Supreme Court handed a victory to securities class action plaintiffs for the second time this term1 by rejecting the United States Court of Appeals for the Fifth Circuit's unique requirement that securities plaintiffs must demonstrate "loss causation"—i.e., the causal link between an alleged securities fraud and plaintiffs' losses—as a predicate to class certification.

In Erica P. John Fund, Inc. v. Halliburton Co., the Court unanimously held that showing loss causation—a required element for securities fraud liability—is not a component of establishing that a securities case may proceed as a class action.2 After obtaining class certification, plaintiffs must still prove loss causation to prevail ultimately on the merits.3 But because the Fifth Circuit stood alone among the nation's circuit courts in requiring proof of loss causation before granting class certification,4 the overall impact of this decision is likely to be limited. Plaintiffs in securities fraud class actions will now have an easier time surviving the class certification stage in the Fifth Circuit, and in circuits that had not yet rejected the Fifth Circuit's loss causation requirement, defendants will have one less defense to assert in opposing class certification.

Background of the Case

Lead plaintiff Erica P. John Fund, Inc. ("EPJ Fund") sued oilfield services company Halliburton Co. and one of its executives in the United States District Court for the Northern District of Texas for securities fraud based on alleged misstatements about the scope of Halliburton's potential liability in asbestos litigation, revenue from construction contracts, and the benefits of a merger.5 EPJ Fund claimed that the alleged misstatements were designed to inflate the company's stock price in violation of § 10(b) of the Securities Exchange Act and Rule 10b-5 thereunder.6 The complaint alleged that the putative class of investors lost money when Halliburton's stock price dropped after a series of corrective disclosures.7

Because § 10(b) and Rule 10b-5 require proof that a plaintiff relied on the alleged misstatements, EPJ Fund asserted a "fraud-on-the-market" theory of reliance. The theory—which assumes that "the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations"8—allows a court to make a rebuttable presumption that each putative class member has satisfied the reliance element of the claim. In the absence of the presumption, no securities case would ever receive class action treatment under Rule 23(b)(3) of the Federal Rules of Civil Procedure because questions of each individual class member's reliance on the alleged misstatements or omissions would predominate.9 The Supreme Court's concern that putative class plaintiffs would be subject to this demanding evidentiary burden is the reason why it established the presumption in Basic Inc. v. Levinson.10 At the same time, in Oscar Private Equity Invts. v. Allegiance Telecom, Inc., the Fifth Circuit recognized the "in terrorem power" of allowing plaintiffs to invoke such a presumption and acknowledged the Basic Court's limitation that the presumption could be rebutted by appropriate evidence.11

After surviving Halliburton's motion to dismiss, EPJ Fund sought class certification under Rule 23 of the Federal Rules of Civil Procedure. Based on the Fifth Circuit's holding in Oscar, the District Court denied EPJ Fund's motion for class certification. Although the proposed class satisfied the certification prerequisites under Rule 23(a), the District Court concluded that Rule 23(b)(3)—namely, the predominance requirement—was not satisfied because EPJ Fund had not proven loss causation at the class certification stage.12

Specifically, the District Court conducted a required merits-based inquiry and concluded that EPJ Fund failed to prove loss causation by a preponderance of admissible evidence.13 Under the Fifth Circuit's holding in Oscar, EPJ Fund was required to prove loss causation to trigger the rebuttable presumption of reliance under a fraud-on-the-market theory.14 Among other things, the District Court concluded that EPJ Fund could not trigger the presumption "by simply offering evidence of a decrease in price following the release of negative information, without citing any actionable misrepresentation or disclosure by Halliburton."15

The Fifth Circuit affirmed the denial of class certification, noting that it too was bound by its holding in Oscar. According to the panel, EPJ Fund was required to, but did not, prove "that the corrected truth of the former falsehoods actually caused the stock price to fall and resulted in the losses."16 By way of example, with respect to the alleged misstatements regarding potential liability from asbestos litigation, the panel noted that, although EPJ Fund demonstrated that the stock price declined after various jury verdicts were announced, it concluded that "a decline in price following negative news does not prove loss causation."17 For other alleged misstatements related to construction contracts, the panel concluded that EPJ Fund provided no link between the decline in stock price and a specific culpable misstatement, attempting instead to rely "only on evidence of a decrease in stock price following the negative disclosure of a fourth quarter charge."18

Supreme Court Rejects Need for Proof of Loss Causation for Class Certification

In Halliburton, the Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, vacated the Fifth Circuit's decision and remanded for further proceedings.19 The Court addressed only the narrow issue of whether a putative class plaintiff must "prove the separate element of loss causation in order to establish that reliance was capable of resolution on a common, classwide basis."20 Noting that the phrase "loss causation" does not even appear in Basic, the Court held that proving loss causation at the class certification stage was neither required nor justified.21 In requiring plaintiffs to prove loss causation at the class certification stage, the Fifth Circuit extended the holding in Basic by conflating the separate elements of reliance—sometimes referred to as "transaction causation"—and loss causation.22 The Court squarely rejected this approach: "The fact that a subsequent loss may have been caused by factors other than the revelation of a misrepresentation has nothing to do with whether an investor relied on the misrepresentation in the first place, either directly or presumptively through the fraud-on-the-market theory."23

The Court also rejected Halliburton's argument that, despite repeated references to loss causation in the panel opinion, the Fifth Circuit actually required EPJ Fund to demonstrate only price impact, not loss causation.24 Although the Fifth Circuit panel discussed the drop in stock price as part of its loss causation analysis, it clearly stated that binding Fifth Circuit precedent required EPJ Fund to prove loss causation to trigger the fraud-on-the-market presumption of reliance.25 The Supreme Court, noting that price impact and loss causation are distinct concepts, took the Fifth Circuit at its word.26

In limiting its decision to the narrow issue of loss causation, however, the Court left unresolved an issue of perhaps broader application—whether a putative class plaintiff must prove price impact as a threshold matter in order to trigger Basic's rebuttable presumption of reliance. Although Basic makes clear that the presumption may be defeated by demonstrating that the alleged fraud had no impact on the stock price, it does not impose an affirmative requirement on the plaintiff to demonstrate price impact to obtain class certification.27 The Halliburton opinion declined to address whether the Fifth Circuit's imposition of that burden on the plaintiff at the class certification stage was proper.28

Halliburton Does Not Undo Requirement that Securities Plaintiffs Must Prove Loss Causation to Prevail

Although this pro-plaintiff decision clarifies that proving loss causation is not a prerequisite to class certification, it is not likely to have a significant impact outside of the Fifth Circuit. In circuits that had not yet rejected Oscar, defendants will now have one fewer argument to make when opposing class certification. Given that the tide of lower court opinions in those circuits had already been moving against the application of the Oscar rule,29 the Halliburton decision is unlikely to alter the class certification landscape in those places in a manner that substantially affects litigation or settlement outcomes. Importantly, the Court's decision does not disturb or undermine in any way the other elements putative class plaintiffs must establish in order to obtain class certification.30 Securities class action plaintiffs must still prove loss causation to prevail on the merits of their securities fraud claims—a substantial obstacle that a number of securities class actions fail to survive.31

Further, reliance remains an "essential element of the § 10(b) private cause of action."32 The Court's decision does not alter what all circuits already required prospective class plaintiffs to show in order to invoke the rebuttable presumption of reliance addressed in Basic: "that plaintiffs must demonstrate that the alleged misrepresentations were publicly known (else how would the market take them into account?), that the stock traded in an efficient market, and that the relevant transaction took place between the time the misrepresentations were made and the time the truth was revealed."33 

Footnotes

1 In March 2011, the Supreme Court unanimously rejected the use of a bright-line test of "statistical significance" for determining whether an investor-plaintiff in a securities fraud action has adequately pled the materiality of a misstatement or omission. See Matrixx Initiatives, Inc. v. Siracusano, No. 09-1156, 563 U.S. ---, Slip Op. at 11 (Mar. 22, 2011); WilmerHale Client Alert, Supreme Court Rejects "Bright-Line" Materiality Rule in Securities Cases, (Mar. 29, 2011), available at www.wilmerhale.com/publications/whPubsDetail.aspx?publication=9748.

Erica P. John Fund, Inc. v. Halliburton Co., No. 09-1403, 563 U.S. --- [hereinafter, Halliburton], Slip Op. at 9 (Jun. 6, 2011).

Halliburton, at 9.

4 The Second, Third and Seventh Circuits had not imposed the Fifth Circuit's loss causation requirement for class certification. See In re Salomon Analyst Metromedia Litig., 544 F.3d 474, 483 (2d Cir. 2008); Schleicher v. Wendt, 618 F.3d 679, 687 (7th Cir. 2010); In re DVI, Inc. Secs. Litig., Nos. 08-8033 & 08-8045, 2011 WL 1125926, *7 (3d Cir. Mar. 29, 2011).

Halliburton, at 2. 

6 Id. at 1-2.

Id. at 2.

Id. at 5 (quoting Basic Inc. v. Levinson, 485 U.S. 224, 243 (1988)).

9 Under Fifth Circuit jurisprudence, the presumption did not come automatically by alleging a price decrease following the release of information that corrects the alleged misrepresentation. Rather, "where multiple items of negative information [were] released on the same day[,] ... to trigger the presumption plaintiffs must demonstrate that there is a reasonable likelihood that the cause of the decline in price is due to the revelation of the truth and not the release of unrelated negative information." Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 665 (5th Cir. 2004).

10 Halliburton, at 5 (citing Basic, at 242).

11 487 F.3d 261 (5th Cir. 2007).

12 Halliburton, at 2 (citing Oscar, 487 F.3d at 269).

13 Archdiocese of Milwaukee Supporting Fund, Inc. v. Halliburton Co., No. 3:02-cv-1152-M, 2008 U.S. Dist. LEXIS 89598, at *68-69 (Nov. 4, 2008).

14 Oscar, 487 F.3d at 269.

15 Archdiocese of Milwaukee Supporting Fund, Inc., No. 3:02-cv-1152-M, 2008 U.S. Dist. LEXIS 89598, at *68-69.

16 Archdiocese of Milwaukee Supporting Fund, Inc. v. Halliburton Co., 597 F.3d 330, 384 (5th Cir. 2010).

17 Id. at 340-41.

18 Id. at 344.

19 Halliburton, at 10.

20 Id. at 4.

21 Id. at 6.

22 Id. at 6.

23 Id. at 7.

24 Id. at 9.

25 Id. at 9.

26 Id. at 9.

27 Basic, 485 U.S. at 248 ("Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.").

28 Halliburton, at 8; see also Archdiocese of Milwaukee Supporting Fund, Inc., 597 F.3d at 335.

29 See, e.g., In re Boston Sci. Corp. Secs. Litig., 604 F. Supp. 2d 275, 287 (D. Mass. 2009) ("Although defendants have raised colorable arguments regarding [plaintiff's] ability to prove loss causation, those issues are more properly addressed on summary judgment or at trial."); City of Ann Arbor Emps.' Ret. Sys. v. Sonoco Prods. Co., 270 F.R.D. 247, 256 (D.S.C. 2010) (concluding that "proof of loss causation is not required at class certification"); Conn. Ret. Plans & Trust Funds v. Amgen, Inc., No. 07-2536, 2009 U.S. Dist. LEXIS 71653, at *33-35 (C.D. Cal. Aug. 12, 2009) (rejecting the Fifth Circuit's requirement as a misreading of the holding in Basic). 

30 Halliburton, at 2.

31 See, e.g., In re Oracle Corp. Secs. Litig., 627 F.3d 376, 383 (9th Cir. 2010) (affirming the district court's grant of summary judgment in favor of the company because plaintiffs developed insufficient evidence "to permit a reasonable jury to conclude that their losses were caused by the market's reaction to Defendants' alleged fraud" rather than the company's poor overall financial health); In re Omnicom Group, Inc. Secs. Litig., 597 F.3d 501, 513-14 (2d Cir. 2010) (affirming grant of summary judgment in favor of defendant where plaintiffs failed to demonstrate evidence of loss causation by failing, inter alia, "to show a price decline due to a corrective disclosure" or that an executive's resignation and ensuing negative press was a foreseeable result of the alleged fraud).

32 Halliburton, at 4 (citation omitted).

33 Id. at 5-6 (citations and quotation marks omitted).

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions