Fraud-on-the-Market Doctrine

Overruling (or, at least, creatively re-characterizing) its own precedent, the Ninth Circuit held in Resh v. China Agritech, Inc., — F.3d —, 2017 WL 2261024 (9th Cir. May 24, 2017), that the pendency of an earlier uncertified class action tolls the statute of limitations not only for later-filed individual claims, but for subsequent class actions as well. The Ninth Circuit’s decision opens the door to the possibility of serial, successive attempts to certify a class in securities (and other) cases, potentially exposing defendants to an almost never-ending series of class action lawsuits.

Under American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), the pendency of a putative class action tolls the statute of limitations applicable to the individual claims of the putative class members. Thus, if the putative class action is timely brought, but class certification is later denied after the statute of limitations would have otherwise expired, putative class members would still be able to bring individual claims on their own behalf. The question in Resh was whether American Pipe tolling should apply to subsequent class actions as well.

The facts of Resh are relatively straightforward. In February 2011, a market research company raised questions about the accuracy of China Agritech’s financial reporting. Its stock price fell substantially. A few days later, a China Agritech shareholder filed a putative securities fraud class action complaint against the company and several of its managers and directors in the Central District of California. The court denied class certification, finding that, because plaintiffs had failed to establish the fraud-on-the-market presumption of reliance, issues common to the proposed class did not predominate over individual issues. Five months after that denial, and one year and eight months after the initial adverse press report, another shareholder filed a second putative securities class action in the District of Delaware. The case was transferred to the same judge in the Central District of California, who again denied class certification, this time on grounds of typicality and adequacy of the named plaintiffs.

Nine months later — and more than three years after the initial adverse press report — plaintiff Michael Resh filed yet another putative class action complaint alleging securities fraud against China Agritech and several individual defendants. A claim for securities fraud under the Exchange Act is subject to a two-year statute of limitations. Thus, if American Pipe tolling applied, the putative class action would be timely — only about 14 months had passed since the initial press report during which a putative class action was not pending. But if American Pipe tolling did not apply, the class action complaint was plainly time-barred.

The Ninth Circuit began its analysis by discarding one of its prior precedents. In Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir. 1987), the Ninth Circuit had held that American Pipe tolling did not apply to a subsequent class action following a definitive determination of the inappropriateness of class certification. The Ninth Circuit dismissed Robbin as “a short opinion published 30 years ago” that had been “modified” in Catholic Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) (en banc). 2017 WL 2261024, at *6.

In Catholic Social Services, the district court had certified a class, but had lost subject matter jurisdiction due to an intervening change in the law. See id. The Ninth Circuit held that American Pipe tolling applied to a subsequent class action in those circumstances. See id. But it also stated, “If class action certification had been denied in [an earlier case], and if plaintiffs in this action were seeking to relitigate the correctness of that denial, we would not permit plaintiffs to bring a class action.” Id. (quoting Catholic Social Services, 232 F.3d at 1147).

The Resh court found that interpreting that statement as forbidding the application of American Pipe tolling to subsequent class actions when class certification had previously been denied would be a “misreading” of Catholic Social Services. Id. at *6-*7. The court explained that it was not talking about American Pipe tolling at all. What it was actually talking about was issue preclusion — all it meant was that, if the same plaintiffs sought to bring a subsequent class action after certification had previously been denied, issue preclusion would bar them from doing so. Id. at *7.

That is, to say the least, an odd reading of Catholic Social Services. Other than the reference to “relitigat[ion],” nothing in Catholic Social Services’ analysis suggests that the court was thinking of issue preclusion. In particular, nothing in the quoted sentence indicates that, to be barred from “relitigat[ing]” class certification, the plaintiffs in the subsequent class action had to be the same plaintiffs who unsuccessfully litigated the first class action — a critical requirement for issue preclusion. In fact, the court actually cited Robbin in support of its statement, which was plainly made in the context of a discussion of the applicability of American Pipe tolling to subsequent class actions. See Catholic Social Services, 232 F.3d at 1145-49. Indeed, the Ninth Circuit expressly dealt with issue preclusion on a different issue in a separate portion of its opinion. Id. at 1151-53.

In any event, having reinterpreted Catholic Social Services as applying American Pipe tolling to subsequent class actions — regardless of the reason for the dismissal of the earlier class action — the Ninth Circuit went on to find support for its position in three recent Supreme Court precedents:

  • In Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), the Supreme Court held that Rule 23 empowers a federal court to certify a class in any type of case, not only those “made eligible for class treatment by some otherId. at 399 (emphasis in original). The Ninth Circuit concluded that to deny American Pipe tolling to subsequent class actions would essentially import “certification criteria” into Rule 23 from “some other law,” which Shady Grove forbids. 2017 WL 2261024, at *7.
  • In Smith v. Beyer Corp., 564 U.S. 299 (2011), the Supreme Court held that, after denying class certification, a federal court could not enjoin a state court from certifying a class under the “relitigation exception” to the Anti-Injunction Act because the state court action had different named plaintiffs who were not subject to claim or issue preclusion. The Court acknowledged the risk of “serial relitigation of class certification,” but found that risk was mitigated by principles of stare decisis and comity, as well as the possibility of removal under the Class Action Fairness Act (for state court actions) or MDL consolidation (for other federal actions). Id. at 316-18. The Ninth Circuit found that those considerations similarly ameliorated the unfairness of serial class certification litigation due to American Pipe 2017 WL 2261024, at *9.
  • Finally, in Tyson Foods, Inc. v. Bouaphakeo, 126 S.Ct. 1036 (2016), the Supreme Court noted that “use of the class device cannot ‘abridge…any substantive right.’” Id. at 1046 (quoting 28 U.S.C. 2072(b)). While acknowledging that Tyson Foods did not directly control, given that “statutes of limitation occupy a no-man’s land between substance and procedure,” the Ninth Circuit found that it “nonetheless reinforces our conclusion that the statute of limitations does not bar a class action brought by plaintiffs whose individual actions are not barred.” 2017 WL 2261024, at *8.

Despite the court’s insistence to the contrary, Resh represents a sharp break from prior law in the Ninth Circuit. Given that the court radically reinterpreted the en banc decision in Catholic Social Services, it will be interesting to see whether the Ninth Circuit elects to reconsider the Resh decision en banc.

In the meantime, Resh increases the pressure on defendants in putative class actions pending in the Ninth Circuit to settle, lest they be saddled with the costs of serially re-litigating class certification even after prevailing. The Resh court’s suggestion that plaintiffs’ counsel, whose fees are usually contingent on the outcome of the case, “at some point will be unwilling to assume the financial risk in bringing successive suits,” id. at *9, is sure to be cold comfort to class action defendants, for whom the cost of litigation is frequently the driving factor in deciding to settle a case.

Some relief may be forthcoming soon from the Supreme Court, however. The Court is currently considering whether American Pipe tolling applies to statutes of repose, in addition to statutes of limitations. See California Pub. Employees’ Retirement Sys. v. ANZ Securities, Inc., 137 S.Ct. 811 (2017) (granting writ of certiorari). If the Supreme Court affirms that American Pipe tolling does not apply to statutes of repose, that would at least put a hard backstop on serial re-litigation of class certification. And given that there is a clear circuit split on whether American Pipe tolling applies to subsequent class actions, see, e.g., Korwek v. Hunt, 827 F.2d 874, 879 (1987), the Supreme Court may eventually take up that issue as well.

On April 12, 2016, the Eighth Circuit became the first court of appeals to interpret and apply Halliburton Co. v. Erica P. John Fund, Inc., 134 S.Ct. 2398 (2014) (“Halliburton II”), in which the Supreme Court held that direct and indirect evidence of a lack of price impact may be presented by Rule 10b-5 defendants at the class certification stage to rebut the “fraud-on-the-market” presumption established by Basic v. Levinson, 485 U.S. 224, 241–47 (1988).

In IBEW Local 98 Pension Fund, et al. v. Best Buy Co., Inc., et al., 818 F.3d 775 (8th Cir. 2016), the majority of a divided three-judge panel held that a district court had abused its discretion in certifying a class under Rule 23, where the defendants had provided “overwhelming evidence” that statements challenged by the plaintiffs had not affected the price of Best Buy’s common stock.

Legal Background: Basic and Halliburton II

Until 1988, when the Supreme Court decided Basic, Rule 23’s commonality requirement was a major impediment to certification in securities cases, because the reliance element of a Rule 10b-5 claim often implicated facts specific to individual investors. Basic transformed the landscape of securities litigation by allowing entire classes of investors to invoke a “fraud-on-the-market” presumption of reliance, eliminating the need for each investor to demonstrate actual reliance. The Basic presumption is based on the theory that because the price of any stock traded on an efficient market reflects all public information, anyone who purchases such a stock when its price has been inflated by a material misrepresentation can be presumed to have relied upon that misrepresentation. 485 U.S. at 246–47.

In Halliburton II, the Supreme Court was given an opportunity to overrule or modify Basic but declined to do so, emphasizing instead that the “fraud on the market” presumption is rebuttable, and holding that “defendants must be afforded an opportunity before class certification to defeat the presumption through evidence that an alleged misrepresentation did not actually affect the market price of the stock”—a chance to show, in other words, that there was no “price impact.” 134 S.Ct. at 2416-17.

Factual Background and the District Court’s Decision

In Best Buy, plaintiffs alleged that the company and three of its executives made false or misleading statements in a press release issued at 8:00 a.m. on September 14, 2010, and an analyst conference call held at 10:00 a.m. the same day. Specifically, plaintiffs initially challenged three statements: one from the 8:00 a.m. press release increasing Best Buy’s earnings-per-share (EPS) guidance for FY 2011, and two from the 10:00 a.m. conference call, that “we are on track to deliver and exceed our annual EPS guidance” and “our earnings are essentially in line with our original expectations for the year.” Best Buy, 818 F.3d at 777-78. The district court allowed the plaintiffs to proceed based on the latter two statements, but dismissed their claim as to the press release statement, holding that increasing the EPS guidance was a forward-looking statement protected by the Safe Harbor provision of the Reform Act. Id. at 778.

With the press release statement out of the case, plaintiffs moved for class certification, relying on Basic’s fraud-on-the-market presumption to satisfy the commonality requirement. The district court stayed the plaintiffs’ motion pending the outcome of Halliburton II, then granted the motion, certifying a class of all Best Buy purchasers between the 10:00 a.m. conference call on September 14 and the release of the “corrective” earnings report three months later. Id. at 777. In doing so, the district court held that defendants had failed to rebut the Basic presumption, because while they had shown that the price of the stock did not increase after the conference call, they failed to show that the conference call statements did not artificially maintain the stock’s price. Id. at 782.

The Eighth Circuit’s Opinion

On interlocutory appeal, the Eighth Circuit focused on whether the district court had properly evaluated the price impact evidence offered by the defendants to rebut the Basic presumption—and in particular, whether the district court was correct to conclude that plaintiffs could continue to rely on the presumption even though defendants had shown that there was no “front-end” price impact immediately following the conference call.

An expert offered by plaintiffs before the district court had opined that although the forward-looking EPS guidance in the 8:00 a.m. press release led to an immediate increase in the stock price, the challenged statements in the conference call two hours later had no additional price impact. This expert also concluded that the “economic substance” of the EPS guidance in the press release was “virtually the same” that of the alleged misstatements in the conference call, and that investors gave the EPS guidance “great weight.” A defense expert agreed. Id.

In the Eighth Circuit’s majority opinion, Judge Loken held that this expert testimony constituted “overwhelming evidence of no ‘front-end’ price impact.” Id. at 782. Although the price of Best Buy stock did decline following the December 14 “corrective” earnings report, which the plaintiffs cited as evidence to support their price maintenance theory, plaintiffs’ own expert’s opinion showed that “the allegedly ‘inflated price’ was established by the non-fraudulent press release,” thereby severing “[any] link between the alleged conference call misrepresentations and the stock price at which plaintiffs purchased.” Id. at 782-83. In the absence of any additional evidence of price impact, Judge Loken concluded, the plaintiffs had failed to satisfy Rule 23, and the district court had abused its discretion in certifying the class. Id. at 783.

Judge Murphy, writing in dissent, argued that the majority had “ignore[d]” plaintiffs’ price maintenance theory, which supported an unrebutted fraud-on-the-market presumption of reliance sufficient to support class certification. Where plaintiffs rely on such a theory, she wrote, the defendant must rebut the Basic presumption “by providing evidence showing that the alleged misrepresentations had not counteracted a price decline that would otherwise have occurred”—and yet the Best Buy defendants had offered no such evidence. Id. at 784.

Judge Murphy also noted that the Seventh and Eleventh Circuits have recognized claims based on an allegation that false statements averted the decline of an artificially-inflated stock price. Id. at *8 (citing FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d 1282, 1313-15 (11th Cir. 2011) and Schleicher v. Wendt, 618 F.3d 679, 683-84 (7th Cir. 2010)).

Although it is not clear that the Best Buy majority sought to foreclose price maintenance arguments as a general matter, the court’s rejection of plaintiffs’ theory does at least raise the possibility of a circuit split regarding their viability.