Friday, March 4, 2011
A group of law professors, spearheaded by Eric Gerding (University of New Mexico), filed an amicus brief (Download 09-1403 tsac Law Professors) in support of petitioners in Erica P. John Fund, Inc. v. Halliburton Co. (No. 09-1403), which will be argued before the Supreme Court next term. This case addresses the loss causation burden at the class certification stage. The Fifth Circuit holds that plaintiffs must prove by a preponderance of evidence both the efficiency of the market (in order to invoke the fraud on the market presumption of reliance) and loss causation at the class certification stage. The brief argues that loss causation presents issues that predominate with respect to the proposed class, thus rendering loss causation an improper condition to class certification under FRCP 23. Moreover, requiring a mini-trial on loss causation at the class certification stage imposes an inappropriately high burden on plaintiffs.