In recent years, the Supreme Court has decided a number of cases that, alone and certainly in the aggregate, have significantly impacted the ability of plaintiffs to initiate and maintain class actions.

By and large, these decisions have opened up new avenues for companies to prevent plaintiffs from commencing class actions in the first place or for defendants successfully to challenge class certification. In particular, and as discussed previously by the authors,1 the Court in a series of decisions has upheld the ability of contracting parties to eliminate class procedures in arbitration; raised the bar for plaintiffs to obtain class certification by requiring them to prove each of the Rule 23 prerequisites at the class certification stage; and barred courts from applying the federal securities law to predominantly extraterritorial investors and transactions, thereby eliminating such class actions.

As explained in the Court's opinions, these decisions were premised on an adherence to congressional intent as reflected in statutory text, which to the Court overrode other considerations that might have warranted a contrary result.

Among the most, if not the most, highly anticipated of the recent class action decisions was Halliburton Co. v. Erica P. John Fund, Inc., 2014 BL 172975 (U.S. 2014) (''Halliburton II''). But the result in Halliburton II is difficult to square with the Court's recent class action jurisprudence. The Halliburton II Court considered the continuing vitality of the fraud-on-the-market presumption in claims asserting violations of Section 10(b) of the Securities Exchange Act of 1934 (the ''Exchange Act'').2 In particular, the Court had the opportunity to jettison the presumption—a classic example of judgemade law originally articulated in Basic Inc. v. Levinson, 485 U.S. 224 (1988)—in favor of faithful observance of statutory text. Instead, Halliburton II retained the fraud-on-the-market presumption, and in so doing, preserved the ability of plaintiffs to assert Section 10(b) claims as class actions.

This article examines Halliburton II alongside other Supreme Court decisions over the last several years that have had the effect of limiting the availability of the class action device, discusses recent lower court decisions applying this precedent, and explores how defendants are using or could consider employing the applicable case law to defeat class certification. Some of these recent Supreme Court decisions confront Rule 23 issues directly, while others touch on class action issues more tangentially. But they have all been favorable to class-action defendants. This article argues that Halliburton II appears to be somewhat of a departure from those cases. However, there is room within the Halliburton II decision for securities class action defendants to make powerful arguments at the class certification stage that in practice were not available before Halliburton II.

Demanding Proof that Rule 23 Class Certification Standards Are Satisfied

Prior to Halliburton, the Supreme Court had issued a number of decisions that had the effect of making it more difficult for plaintiffs to obtain class certification under Federal Rule of Civil Procedure 23 (''Rule 23''). For the most part, these opinions rely on the principle that a plaintiff must affirmatively demonstrate that the prerequisites to certification set forth in Rule 23 are satisfied before class certification can be granted.

Rule 23 requires plaintiffs seeking class certification to establish that: (1) the class is so numerous that joinder of class members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the class representatives are typical of those of the class; and (4) the class representatives will fairly and adequately protect the interests of the class. See Rule 23(a). Plaintiffs also must satisfy one of the following requirements under Rule 23(b): (1) prosecuting individual actions risks either inconsistent adjudications or would be dispositive of the interests of others; (2) defendants have acted or refused to act on grounds generally applicable to the class; or (3) there are common questions of law or fact that predominate over any individual class member's questions and that a class action is superior to other methods of adjudication. See Rule 23(b).

Recent Supreme Court jurisprudence has directed district courts to conduct an in-depth analysis into whether plaintiff has satisfied Rule 23 prerequisites at the class certification stage, even if those questions are implicated by the merits of plaintiffs' claims. Not surprisingly, raising the bar for class certification will limit the number of putative class actions that are certified (and continue to settlement or trial), and may also have the effect of reducing the overall number of class actions filed.

In Wal-Mart Stores, Inc., v. Dukes, 131 S. Ct. 2541 (2011), a case concerning alleged discriminatory employment practices in violation of Title VII, Wal-Mart opposed class certification on the ground that plaintiffs could not show commonality under Rule 23(a)—''that 'there are questions of law or fact common to the class.' '' Id. at 2550-51. In particular, Wal-Mart argued that plaintiffs could not demonstrate that there was a single, countrywide discriminatory policy. The district court certified the class, finding that Wal-Mart's commonality argument required the court to probe too deeply at the class certification stage into issues implicating the merits of plaintiff's claims. The Ninth Circuit affirmed, but the Supreme Court reversed, finding that ''actual, not presumed, conformance with Rule 23(a) remains . . . indispensable.'' Id. at 2551.

Additionally, Justice Scalia's opinion held that the ''rigorous analysis'' of whether the ''prerequisites of Rule 23(a) have been satisfied 'will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.' '' Id. at 2551. The Court then analyzed plaintiffs' evidence of a common pattern or practice of discrimination—evidence that went to the merits of plaintiffs' claims—because it was also necessary to assess ''commonality'' under Rule 23(a). Id. at 2552. The Court held that plaintiffs ''provide[d] no convincing proof of a companywide discriminatory pay and promotion policy,'' and thus had ''not established the existence of any common question'' under Rule 23(a). Id. at 2556-57. Thus, the Court found that plaintiffs' class had been improperly certified. Id. at 2561.

Following Dukes, the Supreme Court decided Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), which addressed whether certification is proper where plaintiffs had failed to establish that damages could be measured on a classwide basis. In Comcast, a putative class of television subscribers filed an antitrust suit alleging that Comcast and other cable providers engaged in a ''clustering'' scheme ''by acquiring competitor cable providers in the region and swapping their own systems outside the region for competitor systems located in the region.'' Id. at 1430.

Plaintiffs asserted that the clustering scheme harmed subscribers in Philadelphia ''by eliminating competition and holding prices for cable services above competitive levels'' in violation of the Sherman Act. Id. At issue at class certification was whether damages were measurable on a classwide basis through the use of a ''common methodology.'' Id. While the district court rejected three of plaintiffs' damages theories, the court certified a class based on the fourth theory of damages. Id. At 1431-32. The Third Circuit affirmed, and the Supreme Court granted certiorari.

The Supreme Court, in a majority opinion authored by Justice Scalia, reversed. The opinion began by echoing Dukes in stating that Rule 23 ''does not set forth a mere pleading standard,'' but rather a party must ''be prepared to prove that there are in fact . . . common questions of law or fact'' as required by Rule 23(a). Id. at 1432. After observing that the ''rigorous analysis'' undertaken at the class certification stage ''will frequently entail 'overlap with the merits of the plaintiff's underlying claim,' '' the Court examined plaintiffs' damages model and found that it ''failed to measure damages resulting from the particular antitrust injury on which [Comcast's] liability in this action is premised.'' Id. at 1433. Because the class damages model was flawed, ''[q]uestions of individual damages calculations inevitably overwhelm questions common to the class,'' and thus the Court denied class certification under Rule 23(b)(3). Id.

Over the past few years, lower courts have relied on Dukes and Comcast to deny class certification. See, e.g., Bussey v. Macon Cnty. Greyhound Park, Inc., 562 Fed. App'x. 782, 790 (11th Cir. 2014) (district court's order granting class certification ''was an abuse of discretion, in light of the Supreme Court's decision in Comcast''); Wallace B. Roderick Revocable Living Trust v.

XTO Energy, Inc., 725 F.3d 1213, 1219 (10th Cir. 2013) (vacating certification order and noting that ''the Comcast Court made clear that it may be necessary for a district court to probe behind the pleadings before deciding whether Rule 23(b)'s requirements have been met''); Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 358 (3d Cir. 2013) (vacating certification order where trial court failed to ''engage in a 'rigorous analysis' '' under Dukes to ''find each of Rule 23(a)'s requirements met by a preponderance of the evidence'') (citation omitted).

One such recent case, In re Kosmos Energy Ltd. Sec. Litig., 299 F.R.D. 133 (N.D. Tex. 2014), is instructive. Kosmos concerned a purported securities class action brought under Sections 11, 12 and 15 of the Securities Act of 1933. Plaintiffs, investors in oil and gas producer Kosmos Energy, alleged that the company made false and misleading statements in a registration statement issued in connection with Kosmos Energy's IPO. See id. at 135. When plaintiffs moved to certify the class, Kosmos Energy argued that the lead plaintiff ''failed to satisfy the exacting evidentiary burdens imposed on parties seeking class certification under Fed. R. Civ. P. 23(a) and (b)(3).'' See id. at 136.

In its analysis, the district court discussed the ''evolution of the case authority on class certification'' in both the Fifth Circuit and Supreme Court, including Comcast and Dukes. See 299 F.R.D. at 137-39 (''Going forward, the clear directive to plaintiffs seeking class certification—in any type of case—is that they will face a rigorous analysis by the federal courts, will not be afforded favorable presumptions from the pleadings or otherwise, and must be prepared to prove with facts— and by a preponderance of the evidence—their compliance with the requirements of Rule 23.'').

After applying the ''rigorous analysis'' mandated by Comcast and Dukes, the district court denied plaintiffs' motion for class certification, finding that plaintiffs could not satisfy the adequacy and predominance requirements of Rule 23. See id. at 154. First, under Rule 23(a), class plaintiffs must show that the lead plaintiffs will ''fairly and adequately protect the interests of the class.'' Fed. R. Civ. P. 23(a)(4). The district court found that lead plaintiff's sole evidence of adequacy, a twopage declaration, ''provide[d] scant factual detail,'' and omitted the typical adequacy factors such as: (i) close affiliation with and dependence upon class counsel, (ii) knowledge of the basic facts of the case and defendants involved, and (iii) desire to vigorously prosecute the case. See id. at 148. Second, with respect to Rule 23(b) predominance, the requirement that ''questions of law or fact common to class members predominate over any questions affecting only individual members'' (Fed. R. Civ. P. 23(b)(3)), the district court found that plaintiffs failed to submit any evidence demonstrating predominance. See id. at 151. In light of these shortcomings, the district court found that plaintiffs ''fail[ed] the rigorous test posed by . . . Wal-Mart and Comcast.'' See id. at 148.3

Adherence to the FAA: The Court's Pro-Arbitration Jurisprudence

Over the last few years, the Supreme Court has issued a number of ''pro-arbitration'' (and, arguably, ''anti-class action'') decisions under the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (''FAA''). In 2010, the Supreme Court issued the first of its recent decisions concerning plaintiffs' ability to arbitrate as a class. In Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 (2010), the Court held that where a commercial contract contains an arbitration agreement that is silent as to class procedures (i.e., it requires arbitration, but does not specify whether the plaintiff may arbitrate as part of a class), it should not be construed to allow class arbitration. See id. at 684 (''a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so''). According to the Court, arbitrators cannot ''presume . . . that the parties' mere silence on the issue of class-action arbitration constitutes consent to resolve their disputes in class proceedings.'' Id. at 687. At its core, the Court's decision was based on the ''foundational FAA principle'' that arbitration is a matter of consent. Id. at 684.

The next year, the Court decided AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), which concerned contracts that expressly prohibited class arbitration. The Concepcion plaintiffs argued that arbitration provisions that included a class waiver were unconscionable and unlawfully exculpatory under the California Supreme Court's decision in Dscover Bank v. Superior Court of L.A., 36 Cal. 4th 148 (Cal. 2005).4 The Supreme Court rejected plaintiffs' argument, finding that ''[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.'' Id. at 1748. Specifically, the majority held that ''[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.'' Id. at 1747 (emphasis added). Thus, Concepcion found that the ''Discover Bank rule is preempted by the FAA.'' Id. at 1753.5 In Stolt-Nielsen and Concepcion, the Court had relied upon the FAA to endorse class-waiving arbitration provisions (both implicit and explicit). But the lower courts were not uniformly enforcing such agreements to arbitrate on an individual basis. For instance, the Second Circuit continued to refuse to enforce arbitration provisions containing class waivers where individual arbitration would be ''uneconomic'' for a lone plaintiff.6 The Supreme Court addressed this issue in mid-2013 in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013) (''AmEx'').

AmEx considered ''whether a contractual waiver of class arbitration is enforceable under the [FAA] when the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery.'' Id. at 2307. The plaintiffs in AmEx were restaurants that alleged that American Express ''used its monopoly power in the market for charge cards to force merchants to accept credit cards at rates approximately 30% higher than the fees for competing credit cards,'' a tying arrangement that allegedly violated the Sherman Act. Id. at 2308.

While the parties' agreement included an arbitration clause and a class waiver (''[t]here shall be no right or authority for any Claims to be arbitrated on a class action basis''), plaintiffs argued that these provisions were unenforceable because the costs of individual arbitration would far exceed any potential recovery, making it uneconomic to arbitrate plaintiffs' claims. See id. (plaintiffs ''submitted a declaration from an economist who estimated that the cost of an expert analysis necessary to prove the antitrust claims would be 'at least several hundred thousand dollars, and might exceed $1 million,' while the maximum recovery for an individual plaintiff would be $12,850'').

The Southern District of New York rejected plaintiffs' argument and dismissed the lawsuits based on the parties' agreement to arbitrate. The Second Circuit reversed, finding that plaintiffs had established that they ''would incur prohibitive costs if compelled to arbitrate under the class action waiver,'' and thus, the waiver was unenforceable and the arbitration could not proceed. See id.7 (citation omitted). According to the Second Circuit's analysis, before compelling individual arbitration, a district court would have to determine that the costs of succeeding on the merits of each claim (and costs of developing the relevant evidence) would not exceed damages. Id. at 2312.

The Supreme Court reversed, finding that the ''FAA does not sanction such a judicially created superstructure.'' Id. Rather, the Court found that arbitration is ''a matter of contract,'' and thus that courts must '' 'rigorously enforce' arbitration agreements according to their terms.'' Id. at 2309. In a 5-3 majority8 written by Justice Scalia, the Court held that ''the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.'' Id. at 2311.9


1 See, e.g., Jason M. Halper & Ryan J. Andreoli, Arbitration Clauses and Class Certification Standards: How the Supreme Court Is Limiting Plaintiffs' Ability to Maintain Class Actions, Bloomberg BNA: Class Action Report, Jan. 25, 2013; Jason M. Halper & Ryan J. Andreoli, Class Action Issues in Supreme Court: Assessing the Significance of Amgen, 249 N.Y.L.J. 4 (Apr. 3, 2013).

2 The fraud-on-the-market presumption articulated in Basic Inc. v. Levinson, 485 U.S. 224 (1988), rests on an economic theory known as the Efficient Capital Markets Hypothesis (''ECMH''), which posits that securities prices rapidly adjust to reflect new public information impacting the underlying value of the securities being traded. In such an ''efficient'' market, investors are justified in relying on the market price as a substitute for investigating corporate reports, which should be reflected in the market price. Any misrepresentation by the issuer would also be incorporated into the price until there is a corrective disclosure. The presumption that an investor who buys or sells stock on an efficient market is relying on the integrity of that price renders the issue of reliance common to the class.

3 In the near future, the Court may take the opportunity to address yet another issue arising from class certification questions. Currently before the Court is a petition for certiorari from a Fifth Circuit decision that created a circuit split regarding whether a class may be certified even if some of its members cannot demonstrate fundamental Article III standing requirements, including that defendant's conduct caused plaintiff's injury. In In re Deepwater Horizon, 739 F.3d 790, 799 (5th Cir. 2014), the Fifth Circuit affirmed the district court's certification of a settlement class arising from the BP Gulf Coast oil spill even though the class included members '' 'who suffered no harm caused by the Deepwater Horizon incident.' '' Id. Although the Fifth Circuit declined to review the finding en banc, several judges dissented from the denial of rehearing, contending that the panel's decision created a split with other circuits, including the Second Circuit, which held that ''no class may be certified that contains members lacking Article III standing.'' In re Deepwater Horizon, 756 F.3d 320, 323 (5th Cir. 2014) (quoting Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006); see also In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 252 (D.C. Cir. 2013) (putative class members must show ''that all class members were in fact injured by the alleged [harm]''); Halvorson v. Auto-Owners Ins. Co., 718 F.3d 773, 778 (8th Cir. 2013) (''In order for a class to be certified, each member must have standing and show an injury in fact that is traceable to the defendant.'').

4 In Discover Bank, the California Supreme Court held that a class waiver ''in a consumer contract of adhesion . . . [involving] small amounts of damages . . . [is] unconscionable under California law and should not be enforced.'' Discover Bank, 36 4th at 162.

5 But see Iskanian v. CLS Trans. L.A., LLC, 59 Cal. 4th 348, 360 (Cal. 2014) (concluding that ''an arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative [Private Attorneys General Act] actions in any forum is contrary to public policy,'' and that the FAA does not preempt California law that prohibits waiver of these actions in an employment contract).

6 See, e.g., In re American Express Merchants Litig., 667 F.3d 204, 212 (2d Cir. 2012) (refusing to compel individual arbitration where ''the only economically feasible means for plaintiffs enforcing their statutory rights is via a class action''). 7 The court did not address the option of compelling arbitration on a classwide basis.

8 Justice Sotomayor recused herself from consideration because she was on the panel that decided the case in the Second Circuit.

9 AmEx already has had a significant impact as numerous federal courts have relied on it in upholding class action waivers. See, e.g., Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1337 (11th Cir. 2014) (relying on AmEx, affirming lower court's order compelling arbitration and dismissing plaintiffs complaint); Raniere v. Citigroup Inc., 533 Fed. App'x. 11, 14 (2d Cir. 2013) (enforcing arbitration agreement and class waiver ''in light of the Supreme Court's recent decision in [AmEx]''); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 298 (2d Cir. 2013) (a ''class-action waiver is not rendered invalid by virtue of the fact that [plaintiff's] claim is not economically worth pursuing individually''); Chambers v. Groome Transp. of Alabama, No. 3:14-cv-237, M.D. Ala. (2014) (finding arbitration agreement and class waiver enforceable because AmEx ''confirms that 'the FAA's command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims' '').

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