United States: Amgen Punctuates Circuit Split: What Must Plaintiff Prove To Establish The "Fraud-On-The-Market" Presumption At Class Certification?

Introduction

Class certification, the battleground for class action lawsuits in general, and private securities class actions in particular, was at the forefront of the United States Supreme Court jurisprudence this past term when the Court decided Erica P. John Fund v. Halliburton and Wal-Mart Stores v. Dukes.

Recently, the Ninth Circuit continued the recent string of cases focused on class certification. In Connecticut Retirement Plans and Trust Funds v. Amgen Inc., the Ninth Circuit joined the Third and Seventh Circuits and held that to invoke the "fraud-on-the-market" presumption of reliance at class certification, a plaintiff need only plausibly allege, but not prove, materiality to carry its burden.¹ Moreover, the Ninth Circuit also held that defendants cannot attempt to rebut the presumption at the class certification stage with evidence that the alleged misrepresentation did not affect the stock price. In contrast, the First, Second, and Fifth Circuits not only allow defendants an opportunity to rebut the Basic presumption, they also require plaintiffs to prove the materiality of the alleged misrepresentations to invoke the presumption first established in Basic Inc. v. Levinson, underscoring a notable split among the courts of appeals. This classic split among the courts of appeals suggests future review by the U.S. Supreme Court.

The Battle Over Reliance at the Class Certification Stage

To properly certify a class action the class proponent must first satisfy all four threshold prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure.² The four requirements – numerosity, commonality, typicality, and adequate representation – "effectively limit the class claims to those fairly encompassed by the named plaintiff's claims."³ Additionally, the class proponent must also meet one of the three requirements of Rule 23(b) in order to bring a claim on behalf of a class. The vast majority of securities class action proponents seek certification under Rule 23(b)(3) which requires that "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."⁴

Problematically, a securities fraud plaintiff seeking to certify a class faced the daunting challenge of establishing that reliance issues – an inherently individualized determination – predominated as required by Rule 23(b)(3). To overcome this challenge, the Supreme Court in Basic Inc. v. Levinson, 485 U.S. 224 (1988), adopted a doctrine that permitted plaintiffs to demonstrate indirect reliance through class-wide rather than individual proof. Instead of requiring plaintiffs to submit proof of individual reliance, plaintiffs could utilize a rebuttable presumption of reliance based on the "fraud-onthe- market" theory, which holds that "the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations."⁵ By directly relying on the integrity of the market price, plaintiffs are presumed to have indirectly relied on the alleged misrepresentation incorporated into that market price. As the Basic Court noted, the presumption, however, may be rebutted. Defendants can show that the alleged misrepresentations did not impact the price of the security because the market already knew the truth or found it to be immaterial.

Recent Supreme Court Jurisprudence Guides the Analysis

Two recent Supreme Court decisions – Halliburton and Dukes – directed the analysis courts must undertake to determine whether to certify a class. In Dukes, the Court reaffirmed its position that courts must engage in a "rigorous analysis" that may likely involve a merits-based determination of certain elements in order to adequately decide whether the class should be certified.⁶ The Halliburton opinion, decided just weeks before Dukes, rejected the Fifth Circuit's requirement that plaintiffs prove loss causation – i.e., that the actionable misstatements actually caused the plaintiffs' economic loss – at the class certification stage.⁷ However, the Halliburton decision neglected to address whether other merits-related determinations must be made at class certification prior to a court certifying a securities class. The Dukes Court, citing Halliburton in a footnote, highlighted that securities fraud class actions are prime for merits-based rigorous analysis of reliance issues.⁸ Yet, the Supreme Court left unanswered questions regarding the extent of the analysis and the elements to analyze.

Connecticut Retirement Plans v. Amgen, Inc. Exacerbates Circuit Split

In Amgen, the plaintiffs alleged four actionable misstatements regarding safety concerns for certain pharmaceutical drugs and marketing practices. The plaintiffs contend the misstatements inflated Amgen's stock price when the plaintiffs' purchased the stock, and later corrective disclosures caused the stock price to fall, causing the plaintiffs' injury. The plaintiffs moved to certify the action as a class under Rule 23(b)(3). The district court, upon certifying the class, found the following questions were common to the class: "whether Amgen made false statements, whether those statements were material, whether those statements were connected with the sale of securities, whether those statements were intentionally false, and whether those statements caused the class members' losses."⁹

The district court further found that reliance was common to the class because the plaintiffs could avail themselves of the fraud-on-the-market presumption because Amgen's stock traded on an efficient market, the misstatements were public, and the plaintiffs sufficiently alleged the misstatements were material.¹⁰

Amgen appealed the class certification order, arguing that the plaintiffs failed to carry their burden under Rule 23(b) because the plaintiffs did not prove that Amgen's alleged misstatements were material. In other words, if the alleged misstatements were immaterial, they would not affect the stock price in an efficient market and the plaintiffs could not collectively rely upon the fraud-on-themarket presumption.

The Ninth Circuit disagreed, noting that materiality is an element to the securities fraud claim and the plaintiffs "cannot both fail to prove materiality yet still have a viable claim for which they would need to prove reliance individually."¹¹ The court reasoned:

"If the misrepresentations turn out to be material, then the fraud-on-the-market presumption makes the reliance issue common to the class, and class treatment is appropriate. But if the misrepresentations turn out to be immaterial, then every plaintiff's claim fails on the merits . . . , and there would be no need for a trial on each plaintiff's individual reliance. Either way, the plaintiff's claims stand or fall together[.]"¹²

Amgen also argued that the district court compounded its error by not permitting Amgen to rebut the fraud-on-the-market presumption with publicized accounts of Amgen's business and the safety of certain drugs. Amgen argued these public disclosures suggest the company's stock price could not have been affected by any misrepresentations, i.e. the alleged misrepresentations ultimately were not material. The Ninth Circuit disagreed, stating that such rebuttable evidence was impermissible at class certification. Amgen, in its petition for rehearing en banc, notes that the court mischaracterized Amgen's argument as a "truth-on-the-market" defense, which the court held was inappropriate at the class certification stage.¹³

In contrast to the Ninth Circuit's holding, in a footnote in Basic, the Supreme Court noted one court of appeal's requirement that a plaintiff must allege and prove the alleged misrepresentations were material to invoke the rebuttable fraud-on-the-market presumption.¹⁴ Based upon this language in Basic, the First, Second, and Fifth Circuits all require that plaintiffs allege and prove materiality in order to invoke the fraud-on-the-market presumption.¹⁵

Potential Ramifications

The Amgen decision punctuated a circuit split the Supreme Court may later decide to address. But perhaps more important to securities litigators defending class certification today, the Amgen court refused to allow Amgen to rebut the fraud-on-the-market presumption at the class certification stage. The essential question presented is how might a plaintiff indirectly rely upon alleged misrepresentations via the price of the security if the alleged misrepresentations never impacted the price and, thus, were not material? The court in Amgen suggests the answer is irrelevant at class certification and is better suited for summary judgment and/or trial.

To be sure, the Ninth Circuit limited the elements of the Basic presumption to: (1) market efficiency, (2) public statements, and (3) alleged materiality. The Third, Seventh, and now the Ninth Circuit require that a securities fraud plaintiff need only prove that the stock traded on an efficient market and the alleged misstatements were publicly disseminated to obtain class certification via the fraudon- the-market presumption of reliance. Further, the Ninth Circuit refuses to permit defendants to submit evidence that rebuts the materiality of the misstatements. Plaintiffs will undoubtedly tout this decision as a lethal arrow in its quiver to certify securities classes and gain further leverage over defendants. But given the lack of consensus among the circuits, and the recent decisions in Dukes and Halliburton, defendants in securities fraud cases will continue to push courts to perform a rigorous analysis of the class certification requirements, including the fraud-on-the-market presumption of reliance, and to allow defendants a robust opportunity to rebut the Basic presumption at the class certification stage.

Footnotes

1 Conn. Retirement Plans and Trust Funds v. Amgen, Inc., No. 09-56965, 2011 WL 5341285, ---F.3d --- (9th Cir. 2011).

2 The Rule 23(a) prerequisites are: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class."

3 Dukes, 131 S. Ct. 2541, 2550 (internal quotations omitted).

4 Fed. R. Civ. P. 23(b)(3) (emphasis added). The Supreme Court has held that the inquiry into whether common questions predominate over individual claims is more demanding than determining the commonality prerequisite in Rule 23(a)(2). In Dukes, the majority opinion makes the distinction that Rule 23(b)(3) concerns whether common questions predominate individual claims, whereas a Rule 23(a)(2) determination is satisfied if there is even a single common question. 131 S. Ct. at 2556.

5 Basic, 485 U.S. at 246.

6 Dukes, 131 S.Ct. at 2551.

7 Halliburton, 131 S.Ct. at 2186-2187.

8 Dukes, 131 S.Ct. at 2551 fn.6.

9 Amgen, 2011 WL 5341285 at 3-4.

10 Id. at 4.

11 Id. at 5.

12 Id. at 4.

13 Id. at 11.

14 See Basic, 485 U.S. at 248 n.27.

15 See In re Salomon Analyst Metromedia Litig., 544 F.3d 474, 481 (2d. Cir. 2008) (finding Basic established that a plaintiff must prove that defendant publicly made a material misrepresentation about a stock that trades on an efficient market to invoke the fraud-on-the market presumption); see also Oscar Private Equity Invs. v. Allegiance Telecom, Inc., 487 F.3d 261, 264 (reliance is presumed only where the plaintiff can establish the defendant made public material misrepresentations); In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 8 n.11 (1st Cir. 2005) (plaintiff must prove materiality to invoke the fraud-on-the-market presumption).

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