Garaufis, District Judge:
This expedited appeal arises out of an order entered in the United States District Court for the Southern District of New York (Rakoff, J.) certifying two classes in this securities fraud action against Petróleo Brasileiro S.A. — Petrobras ("Petrobras") and various other defendants. See In re Petrobras Sec. Litig. (the "Certification Order"), 312 F.R.D. 354 (S.D.N.Y. 2016).
Petrobras is a multinational oil and gas company headquartered in Brazil and majority-owned by the Brazilian government. Though Petrobras was once among the largest companies in the world, its value declined precipitously after the exposure of a multi-year, multi-billion-dollar money-laundering and kickback scheme, prompting a class action by holders of Petrobras equity and debt securities ("Plaintiffs") against multiple defendants ("Defendants"): Petrobras and certain wholly owned subsidiaries (the "Subsidiaries"; collectively with Petrobras, the "Petrobras Defendants"
The district court certified two classes (the "Classes") for money damages under Federal Rule of Civil Procedure 23(b)(3): the first asserts claims under the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. §§ 78a et seq.; and the second asserts claims under the Securities Act of 1933 (the "Securities Act"), 15 U.S.C. §§ 77a et seq.
First, Appellants challenge both class definitions insofar as they include all otherwise eligible persons who purchased Petrobras debt securities in "domestic transactions." Because Petrobras's debt securities do not trade on a domestic exchange, the district court must assess each class member's over-the-counter transactions for markers of domesticity under
Second, with regard to the Exchange Act Class, the Petrobras Defendants
For the reasons set forth below, we AFFIRM IN PART and VACATE IN PART the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.
We provide here a brief summary of the proceedings below as relevant for the issues on appeal. For additional background on Plaintiffs' allegations and causes of action, see the district court's prior orders. See In re Petrobras Sec. Litig. (the "July 2015 Order"), 116 F.Supp.3d 368, 373-77 (S.D.N.Y. 2015) (summarizing the original consolidated complaint); In re Petrobras Sec. Litig. (the "December 2015 Order"), 150 F.Supp.3d 337 (S.D.N.Y. 2015) (discussing new allegations in the amended pleadings).
Plaintiffs' claims arise out of a conspiracy that began in the first decade of the new millennium, at which time Petrobras was expanding its production capacity. The company used a competitive bidding process for major capital expenditures, including the construction and purchase of oil refineries. Over a period of several years, a cartel of contractors and suppliers coordinated with corrupt Petrobras executives to rig Petrobras's bids at grossly inflated prices. The excess funds were used to pay
Brazil's Federal Police discovered the scheme during a money-laundering investigation, and ultimately arrested a number of the individuals involved. As details of the scandal emerged, Petrobras made corrective disclosures that, according to Plaintiffs, significantly understated the extent of incorrectly capitalized payments and inflated asset values. Even so, the value of Petrobras's securities declined precipitously. Plaintiffs allege that, "[a]t its height in 2009, Petrobras was the world's fifth-largest company, with a market capitalization of $310 billion"; by early 2015, its worth had allegedly declined to $39 billion. 4th Am. Compl. ¶ 2.
Petrobras's common and preferred shares trade on a Brazilian stock exchange, the BM&F BOVESPA. The company sponsors American Depository Shares ("ADS")
In addition, Petrobras has issued multiple debt securities (the "Notes"; collectively with ADS, "Petrobras Securities") underwritten by syndicates of domestic and foreign banks. The Notes do not trade on any U.S. exchange. Investors trade Notes in over-the-counter transactions, whether in connection with an initial debt offering or in the global secondary market.
In December 2014 and January 2015, Petrobras investors filed five putative class actions asserting substantially similar claims against Petrobras and other defendants. The district court consolidated those actions in February 2015 and certified the Classes in February 2016. The district court also presided over several individual actions involving similar claims.
As relevant for this appeal, Plaintiffs assert a cause of action under the Exchange Act against the Petrobras Defendants, and three causes of action under the Securities Act against various Petrobras and Underwriter Defendants.
Plaintiffs' Exchange Act claims are brought against Petrobras and the Subsidiaries on behalf of holders of Petrobras ADS and Notes. Plaintiffs assert that, during the class period of January 22, 2010, to July 28, 2015, the Petrobras Defendants
Plaintiffs rely on similar factual allegations in their claims under the Securities Act, brought on behalf of Petrobras Noteholders. Plaintiffs allege that the Petrobras Defendants and the Underwriter Defendants made materially false representations in registration statements and other documents connected with offerings of Petrobras Notes in May 2013 and March 2014 (the "Offerings"), thereby establishing liability under Sections 11, 12(a)(2), and 15 of the Securities Act. See 15 U.S.C. §§ 77k, 77l(a)(2), 77o.
On February 2, 2016, the district court granted Plaintiffs' motion to certify two classes under Rule 23(b)(3), one asserting claims under the Exchange Act and the other asserting claims under the Securities Act. Certification Order, 312 F.R.D. 354.
Because Petrobras Notes do not trade on any U.S.-based exchange, Noteholders in both Classes are only entitled to assert claims under the Exchange Act and the Securities Act if they can show that they acquired their Notes in "domestic transactions." Morrison, 561 U.S. at 267, 130 S.Ct. 2869. To ensure compliance with Morrison, the district court limited both class definitions to "members [who] purchased Notes in domestic transactions." Certification Order, 312 F.R.D. at 360.
The Exchange Act Class is defined, in relevant part,
Id. at 372.
The Securities Act Class is defined, in relevant part, as:
Id. The Securities Act Class definition is temporally limited to purchases made "before Petrobras made generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the effective date of the offerings." Id. This language conforms to
On June 15, 2016, a panel of this Court granted Appellants' timely filed petition for permission to appeal the Certification Order under Federal Rule of Civil Procedure 23(f) and Federal Rule of Appellate Procedure 5(a). On August 2, 2016, a separate panel granted Appellants' motion for a stay pending resolution of this expedited interlocutory appeal.
A plaintiff seeking certification of a Rule 23(b)(3) class action bears the burden of satisfying the requirements of Rule 23(a) — numerosity, commonality, typicality, and adequacy of representation — as well as Rule 23(b)(3)'s requirements: (1) that "the questions of law or fact common to class members predominate over any questions affecting only individual members" (the "predominance" requirement); and (2) that "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy" (the "superiority" requirement). Fed. R. Civ. P. 23(a), (b)(3); In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 117 (2d Cir. 2013) ("To certify a class, a district court must ... find that each [Rule 23] requirement is `established by at least a preponderance of the evidence.'" (quoting Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010))). This Court has also "recognized an implied requirement of ascertainability in Rule 23," which demands that a class be "sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member." Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015) (internal quotation marks and citations omitted).
Appellants do not challenge the district court's findings with regard to the class certification elements under Rule 23(a). Rather, they assert two arguments under Rule 23(b)(3). Appellants first argue that both Classes fail to satisfy ascertainability, predominance, and superiority because putative class members must establish, on an individual basis, that they acquired their securities in "domestic transactions." The Petrobras Defendants assert a second predominance challenge specific to the Exchange Act Class: they argue that the district court erred in finding that Plaintiffs successfully established a class-wide presumption of reliance under the "fraud on the market" theory.
"We review a district court's conclusions as to whether the requirements of Federal Rule of Civil Procedure 23 were met, and in turn whether class certification was appropriate, for abuse of discretion."
The two certified Classes include all claims arising out of Petrobras Notes purchased in "domestic transactions" during the class period, thereby capturing the broadest membership possible under Morrison. Appellants argue that the difficulties inherent in assessing putative class members' transaction records make the Classes uncertifiable for several reasons, the most important of which, for our purposes, are (1) the ascertainability doctrine, which has seen recent developments in this Circuit and others; and (2) predominance. We hold that both class definitions satisfy the ascertainability doctrine as it is defined in this Circuit. We further hold, however, that the district court erred in conducting its predominance analysis without considering the need for individualized Morrison inquiries. On that basis, we vacate the district court's certification decision and remand for further proceedings.
"It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Morrison, 561 U.S. at 255, 130 S.Ct. 2869 (internal quotation marks and citation omitted). Based on that presumption against extraterritoriality, the Supreme Court held in Morrison that the reach of U.S. securities law is presumptively limited to (1) "transactions in securities listed on domestic exchanges," and (2) "domestic transactions in other securities." Id. at 267, 130 S.Ct. 2869 (discussing Section 10(b) of the Exchange Act); see also id. at 268, 130 S.Ct. 2869 (noting that "[t]he same focus on domestic transactions is evident in the Securities Act").
As noted in the margin, we assume that a purchase of Petrobras ADS qualifies under Morrison's first prong as long as the transaction occurs on the NYSE, a "domestic exchange." See City of Pontiac Policemen's & Firemen's Ret. Sys. v. UBS AG, 752 F.3d 173, 180-81 (2d Cir. 2014) (holding that mere listing on a domestic exchange is not sufficient to establish domesticity if the relevant securities transaction did not occur on a domestic exchange). The Notes, however, do not trade on any domestic exchange.
This Court's decision in Absolute Activist elaborated on that standard: for "securities that are not traded on a domestic exchange," a transaction is considered "domestic if [1] irrevocable liability is incurred or [2] title passes within the United States." Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 67 (2d Cir. 2012). In other words, for a transaction to qualify as domestic, either (1) the purchaser must have "incurred irrevocable liability within the United States to take and pay for a security, or ... the seller [must have] incurred irrevocable liability within the United States to deliver a security," or (2) legal title to the security must have transferred in the United States. Id. at 68.
The location or residency of the buyer, seller, or broker will not necessarily establish the situs of the transaction. Id. at 68-69. Rather, plaintiffs demonstrate the location where irrevocable liability was incurred or legal title transferred by producing evidence "including, but not limited to, facts concerning the formation of the contracts, the placement of purchase orders,... or the exchange of money." Id. at 70.
Before certifying the Classes, the district court twice adjudicated Morrison-based
Plaintiffs responded with new allegations and documentary evidence regarding Notes transactions for each of the four putative named plaintiffs. Defendants once again moved to dismiss. The district court found that two of the named plaintiffs had adequately pleaded domestic transactions based on their acquisition of Notes directly from U.S. underwriters in the Offerings. December 2015 Order, 150 F.Supp.3d at 340. For example, one plaintiff's "traders in Raleigh, North Carolina purchased Notes on May 13, 2013, and March 10, 2014, from underwriters in New York, New York." Id. The district court found that this plaintiff had alleged "the kinds of facts required by Absolute Activist, including New York area code phone numbers on the confirmations sent by representatives of the underwriters." Id. at 340 n.5.
The district court determined that the other two named plaintiffs had failed to satisfy the Morrison inquiry and dismissed their Securities Act claims. Id. at 340-43. One plaintiff, for example, presented a confirmation slip stating that Petrobras Notes had been purchased "in U.S. dollars and that the Notes were held in `[s]afekeeping of securities abroad, depository country: U.S.A.'" Id. at 341 (quoting the 4th Am. Compl.). According to the district court, this "language suggests that the purchase occurred outside the United States because it refers to the United States as `abroad.'" Id. (emphasis added). The district court similarly found insufficient an allegation that an investment manager "located in the United Kingdom[ ] instructed its U.S. affiliate, located in Chicago, Illinois, to transfer Petrobras Notes to [the plaintiff entity,] located in the United Kingdom." Id. The court noted that "a `transfer,' rather than a purchase, [was] all that [was] alleged. Moreover, the allegations suggest that irrevocable liability was incurred in the United Kingdom," where both the plaintiff and the investment manager were located, "rather than in the United States." Id.
In an attempt to preserve those claims, Plaintiffs offered two alternative methods for establishing domestic transactions as a matter of law. First, Plaintiffs argued that a securities transaction should qualify as "domestic" if beneficial title is transferred when the transaction is settled through a domestic securities depository, such as the Depository Trust Company ("DTC") located in New York City. Id. The district court disagreed, finding that "[t]he mechanics of DTC settlement are actions needed to carry out transactions, but they involve neither the substantive indicia of a contractual commitment necessary to satisfy Absolute Activist's first prong nor the formal weight of a transfer of [legal] title necessary for its second." Id. at 342 (emphasis added); see also id. ("[T]he Second Circuit has [ ] indicated that domestic `actions needed to carry out transactions, and not the transactions themselves,' are insufficient to satisfy Morrison." (quoting Loginovskaya v. Batratchenko, 764 F.3d 266, 275 (2d Cir. 2014))). The district court also expressed concern that, "assuming the parties are correct that most securities transactions settle through the DTC or similar depository institutions, the entire thrust of Morrison and its progeny would be rendered nugatory if all DTC-settled transactions necessarily fell under the reach of the federal securities laws." Id.
Finally, Plaintiffs proposed a method for constructively establishing the domesticity
"Most [ ] circuit courts of appeals have recognized that Rule 23 contains an implicit threshold requirement that the members of a proposed class be readily identifiable," often characterized as "an `ascertainability' requirement." Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 995 (8th Cir. 2016) (internal quotation marks and citation omitted) (collecting cases). "[C]ourts ascribe widely varied meanings to that term," however. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 n.3 (9th Cir. 2017) (describing two versions of the ascertainability requirement); see generally Geoffrey C. Shaw, Note, Class Ascertainability, 124 Yale L.J. 2354, 2366-88 (2015) (describing different conceptions of ascertainability and critiquing the proffered justifications).
In Brecher v. Republic of Argentina, we offered our first and, thus far, only affirmative definition
Brecher, 806 F.3d at 24-25 (internal quotation marks and citations omitted). Based on this language, Appellants argue for a "heightened" ascertainability requirement under which any proposed class must be "administratively feasible," over and above the evident requirements that a class be "definite" and "defined by objective criteria," and separate from Rule 23(b)(3)'s requirements of predominance and superiority.
We take this opportunity to clarify the ascertainability doctrine's substance and purpose. We conclude that a freestanding administrative feasibility requirement is neither compelled by precedent nor consistent with Rule 23, joining four of our sister circuits in declining to adopt such a requirement. The ascertainability doctrine that governs in this Circuit requires only that a class be defined using objective criteria that establish a membership with definite boundaries. Applying that doctrine,
In its Certification Order, the district court rejected Defendants' argument that, "because of the nuances of the `domestic transaction' standard, determining [class membership] and damages will be an administratively unfeasible task for this Court, for putative class members who receive notice of the action, and for future courts facing claims from class members who have not properly opted out." 312 F.R.D. at 363-64 (emphasis added) (footnote omitted).
Appellants renew that argument on appeal, packaged as a challenge to the district court's finding "that the Morrison determination is `administratively feasible.'" Id. at 364 (quoting Brecher, 806 F.3d at 24). Appellants cite heavily to cases from the Third Circuit, which has formally adopted a "heightened" two-part ascertainability test under which plaintiffs must not only show that "the class is `defined with reference to objective criteria,'" but also that "there is `a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.'" Byrd v. Aaron's Inc., 784 F.3d 154, 166 (3d Cir. 2015), as amended Apr. 28, 2015 (quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013)); see also Carrera v. Bayer Corp., 727 F.3d 300, 305 (3d Cir. 2013); Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 592-95 (3d Cir. 2012).
With all due respect to our colleagues on the Third Circuit, we decline to adopt a heightened ascertainability theory that requires a showing of administrative feasibility at the class certification stage. The reasoning underlying our decision in Brecher does not suggest any such prerequisite, and creating one would upset the careful balance of competing interests codified in the explicit requirements of Rule 23. In declining to adopt an administrative feasibility requirement, we join a growing consensus that now includes the Sixth, Seventh, Eighth, and Ninth Circuits. See Briseno, 844 F.3d at 1123; Sandusky, 821 F.3d at 995-96; Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015), cert. denied, ___ U.S. ___, 136 S.Ct. 1493, 194 L.Ed.2d 597 (2016); Mullins v. Direct Digital, LLC, 795 F.3d 654, 657-58 (7th Cir. 2015), cert. denied, ___ U.S. ___, 136 S.Ct. 1161, 194 L.Ed.2d 175 (2016); see also Byrd, 784 F.3d at 177 (Rendell, J., concurring) ("suggest[ing]" that the Third Circuit "retreat from [its] heightened ascertainability requirement" by eliminating the administrative feasibility prong).
Brecher was one of several opinions in which we assessed a class action initiated by holders of Argentinian bonds "[a]fter Argentina defaulted on between $80 and $100 billion of sovereign debt in 2001." Brecher, 806 F.3d at 23 (listing prior decisions). The district court originally "certified a class under a continuous holder requirement, i.e., the class contained only those individuals who [ ] possessed beneficial interests in a particular bond series issued by the Republic of Argentina from the date of the complaint [ ] through the date of final judgment." Id.
When the district court granted summary judgment to the plaintiffs, we vacated in part after finding that the district court's method of calculating aggregate damages had likely produced impermissibly inflated awards. See Seijas v. Republic of Argentina, 606 F.3d 53, 58-59 (2d Cir. 2010); Hickory Sec., Ltd. v. Republic of
We concluded that, without the continuous holder requirement, the modified class was unascertainable. Id. at 26. We first defined the elements of ascertainability, explaining that a proposed class: (1) must be "sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member"; and (2) must be "defined by objective criteria that are administratively feasible," such that "identifying its members would not require a mini-hearing on the merits of each case." Id. at 24 (citations omitted). These requirements operate in harmony: "the use of objective criteria cannot alone determine ascertainability when those criteria, taken together, do not establish the definite boundaries of a readily identifiable class.
Turning to the facts of the case, we expressed concern that the class was insufficiently bounded:
Id. at 25-26 (citations omitted). We concluded that "[t]his case presents [ ] a circumstance where an objective standard — owning a beneficial interest in a bond series without reference to time owned — is insufficiently definite to allow ready identification of the class or the persons who will be bound by the judgment." Id. at 25 (footnote omitted).
As this summary clarifies, we reached our decision in Brecher by asking whether the class was defined by objective criteria that made the class's membership sufficiently definite, not whether the class was administratively feasible.
This interpretation finds further support in the district court cases we cited in Brecher's articulation and application of the ascertainability standard. Compare Bakalar v. Vavra, 237 F.R.D. 59, 65 (S.D.N.Y. 2006) (declining to certify a class seeking recovery of artworks traceable to a particular estate — an objective criterion — because the movants were unable to identify the specific artworks, and were therefore also unable to identify "the owners, possessors or individuals who participated in transfers of such works"), with Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 567 (S.D.N.Y. 2014) (acknowledging the challenge of identifying individuals who purchased a particular brand of olive oil during the class period, but finding the class ascertainable because "ascertainability... is designed only to prevent the certification of a class whose membership is truly indeterminable" (emphasis added) (internal quotation marks and citations omitted)), and Charron v. Pinnacle Grp. N.Y. LLC, 269 F.R.D. 221, 229 (S.D.N.Y. 2010) (finding that ascertainability was satisfied because the proposed class was "defined by objective criteria — namely, whether a given apartment is rent-regulated" and "owned by the [defendant corporation]; and whether the putative Class member is a tenant" on a fixed date — "thus allowing the Court to readily identify Class members without needing to resolve the merits of Plaintiffs' claims").
Having concluded that our decision in Brecher did not create an independent administrative feasibility requirement, we now consider whether such a requirement is compulsory under Rule 23, or at least complementary to the requirements enumerated therein. We find that it is neither. In pursuing this analysis, we are mindful that "[c]ourts are not free to amend [the Federal Rules of Civil Procedure] outside the process Congress ordered." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). "The text" of Rule 23 thus "limits judicial inventiveness." Id.
The heightened ascertainability test, as articulated by the Third Circuit and endorsed by Appellants, treats administrative feasibility as an absolute standard: plaintiffs must provide adequate "assurance that there can be `a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.'"
On its face, this test appears to duplicate Rule 23's requirement that district courts consider "the likely difficulties in managing a class action."
The proposed administrative feasibility test also risks encroaching on territory belonging to the predominance requirement, such as classes that require highly individualized determinations of member eligibility. See, e.g., Mazzei v. The Money Store, 829 F.3d 260, 272 (2d Cir. 2016) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 137 S.Ct. 1332, 197 L.Ed.2d 518 (2017). Like superiority, predominance is a comparative standard: "Rule 23(b)(3) [ ] does not require a plaintiff seeking class certification to prove that each element of her claim is susceptible to classwide proof. What the rule does require is that common questions `predominate over any questions affecting only individual [class] members.'" Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 133 S.Ct. 1184, 1196, 185 L.Ed.2d 308 (2013) (quoting Fed. R. Civ. P. 23(b)(3); other quotation marks, citations, and alterations omitted).
We conclude that an implied administrative feasibility requirement would be inconsistent with the careful balance struck in Rule 23, which directs courts to weigh the competing interests inherent in any class certification decision. Accord Briseno, 844 F.3d at 1128 ("[A] freestanding administrative feasibility requirement" would "have practical consequences inconsistent
Our decision in Brecher did not create an administrative feasibility requirement, and we decline to adopt one now. The ascertainability requirement, as defined in this Circuit, asks district courts to consider whether a proposed class is defined using objective criteria that establish a membership with definite boundaries. This modest threshold requirement will only preclude certification if a proposed class definition is indeterminate in some fundamental way. If there is no focused target for litigation, the class itself cannot coalesce, rendering the class action an inappropriate mechanism for adjudicating any potential underlying claims. In other words, a class should not be maintained without a clear sense of who is suing about what. Ascertainability does not directly concern itself with the plaintiffs' ability to offer proof of membership under a given class definition, an issue that is already accounted for in Rule 23.
The district court's analysis in the Certification Order is not precisely consistent with the ascertainability standard articulated in this opinion. The district court focused primarily on the types of feasibility concerns that we hold are not controlling of the ascertainability analysis, and effectively addressed ascertainability as a component of superiority. 312 F.R.D. at 363-64. Nonetheless, the district court's findings reflect an understanding that objective criteria would permit the identification of class members. We agree.
The Classes include persons who acquired specific securities during a specific time period, as long as those acquisitions occurred in "domestic transactions." Id. at 372. These criteria — securities purchases identified by subject matter, timing, and location — are clearly objective. The definition is also sufficiently definite: there exists a definite subset of Petrobras Securities holders who purchased those Securities in "domestic transactions"
Unlike in Brecher or the cases cited therein, neither the parties nor the properties that are the subject of this litigation are fundamentally indeterminate. Finding no error in the district court's conclusion on this point, we reject Appellants' contention that the classes defined by the district court fail on ascertainability grounds.
A district court may only certify a class under Federal Rule of Civil Procedure 23(b)(3) if "questions of law or fact common to class members predominate over any questions affecting only individual members." This "predominance" requirement is satisfied if: (1) resolution of any material "legal or factual questions... can be achieved through generalized proof," and (2) "these [common] issues are more substantial than the issues subject only to individualized proof." Mazzei, 829 F.3d at 272 (quoting Myers, 624 F.3d at 547).
The distinction between "individual" and "common" questions is thus central to the predominance analysis. As the Supreme Court has explained:
Tyson Foods, Inc. v. Bouaphakeo, ___ U.S. ___, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016) (alteration omitted) (quoting 2 William B. Rubenstein, Newberg on Class Actions § 4:50, at 196-97 (5th ed. 2012)).
The predominance inquiry is a core feature of the Rule 23(b)(3) class mechanism, and is not satisfied simply by showing that the class claims are framed by the common harm suffered by potential plaintiffs. Amchem Prods., 521 U.S. at 623-24, 117 S.Ct. 2231 (noting that "predominance criterion is far more demanding" than the "commonality" requirement under Rule 23(a)); see also Johnson v. Nextel Commc'ns Inc., 780 F.3d 128, 138 (2d Cir. 2015). Where individualized questions permeate the litigation, those "fatal dissimilarit[ies]" among putative class members "make use of the class-action device inefficient or unfair." Amgen, 133 S.Ct. at 1197 (citation omitted); see also 7AA Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1778, at 141 (3d ed. 2005). ("[W]hen individual rather than common issues predominate, the economy and efficiency of class-action treatment are lost and... the risk of confusion is magnified." (footnote omitted)).
The predominance inquiry mitigates this risk by "ask[ing] whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues." Tyson Foods, 136 S.Ct. at 1045 (emphasis added) (quoting Rubenstein, supra, at 195-96); see also id. (The "inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." (quoting Amchem Prods., 521 U.S. at 623, 117 S.Ct. 2231)). For this reason, the Supreme Court has emphasized district courts' "duty to take a `close look' at whether common
A proper assessment of predominance in this action involves two predicate questions about the role of Morrison inquiries. First, is the determination of domesticity material to Plaintiffs' class claims? See Amchem Prods., 521 U.S. at 623, 117 S.Ct. 2231 (explaining that predominance "trains on the legal or factual questions that qualify each class member's case as a genuine controversy"). If so, is that determination "susceptible to generalized class-wide proof" such that it represents a "common" question rather than an "individual" one? Tyson Foods, 136 S.Ct. at 1045 (internal quotation marks and citation omitted). We find that the district court failed to meaningfully address the second question. That omission was an error of law, and we vacate the certification decision on that basis. Only by answering both predicate questions can the district court properly assess whether, in the case as a whole, common issues are "more prevalent or important" than individual ones. Id. (citation omitted).
With regard to the first question, "Morrison makes clear that [determining] whether [federal securities law] applies to certain conduct is a `merits' question." Absolute Activist, 677 F.3d at 67 (quoting Morrison, 561 U.S. at 254, 130 S.Ct. 2869). In other words, a putative class member only has a viable cause of action if the specific Petrobras Securities sued upon were purchased in a qualifying "domestic transaction." City of Pontiac, 752 F.3d at 179; see also Morrison, 561 U.S. at 273, 130 S.Ct. 2869 (holding that securities fraud claims that lack a domestic connection must be dismissed for "fail[ure] to state a claim on which relief can be granted").
The district court clearly recognized Morrison's importance because the class definitions import Morrison's unelaborated legal standard, namely that Petrobras Securities must have been purchased in "domestic transactions." See Certification Order, 312 F.R.D. at 372. Indeed, it appears that the district court consciously sought to certify encompassing classes that would extend as far as Morrison allows. See id. at 364 (rejecting a proposed limitation to the class definition because it "would cut off purchasers who have valid claims under Morrison's second prong"). When it came to predominance, however, the district court did not mention Morrison at all. The court found that predominance was satisfied, explaining that, "with the exception of reliance[
The Certification Order is susceptible to two possible readings: either the district court implicitly held that Morrison inquiries constituted a common issue, or the court simply sidestepped the question. Either way, given the nature of the Morrison inquiries at issue, the district court cannot be said to have "give[n] careful scrutiny to the relation between [the] common and individual questions" central to this case. See Tyson Foods, 136 S.Ct. at 1045.
On the available record, the investigation of domesticity appears to be an "individual question" requiring putative class members to "present evidence that varies from member to member." Id. (citation omitted). As discussed above, a plaintiff may demonstrate the domesticity of a particular transaction by producing evidence "including, but not limited to, facts concerning the formation of the contracts, the placement or purchase orders, the passing of title, or the exchange of money." Absolute Activist, 677 F.3d at 70; see also Discussion Section II.A, supra. These transaction-specific facts are not obviously "susceptible to [ ] class-wide proof,"
In cases that have applied Morrison and Absolute Activist — including the district court's own experience adjudicating Petrobras-specific inquiries — factfinders have considered various types of evidence offered to prove the domesticity of various types of transactions. See, e.g., Loginovskaya, 764 F.3d at 274-75 (finding that domestic wire transfers failed to satisfy Absolute Activist because they were "actions needed to carry out the transactions, and not the transactions themselves"); In re Petrobras Sec. Litig., 152 F.Supp.3d 186, 193 (S.D.N.Y. 2016) (explaining that the high-level documentation provided by various plaintiffs was insufficient to plead a domestic transaction); December 2015 Order, 150 F.Supp.3d at 340-41 (finding that two proposed class representatives failed to plead domestic transactions in Petrobras Notes).
The district court suggested that the pertinent locational details for each transaction are likely to be found in the "record[s] routinely produced by the modern financial system," and "are highly likely to be documented in a form susceptible to the bureaucratic processes of determining who belongs to a Class." Certification Order, 312 F.R.D. at 364. Even if that fact is true, however, it does not obviate the need to consider the plaintiff-specific nature of the Morrison inquiry.
Significantly, the Classes include investors who purchased Notes in the initial Offerings, as well as investors who purchased their Notes on the secondary market. See Certification Order, 312 F.R.D. at 372. Aftermarket purchasers asserting claims under Sections 11 and 15 of the Securities Act must not only establish that they acquired their Notes in a domestic secondary transaction, but must also show that the particular Notes they acquired are "traceable to" one of the U.S.-registered Offerings. See id. The Certification Order offers no indication that the district court considered the ways in which evidence of domesticity might vary in nature or availability across the many permutations of transactions in Petrobras Securities.
The need for Morrison inquiries nominally presents a common question because the need to show a "domestic transaction" applies equally to each putative class member. However, Plaintiffs bear the burden of showing that, more often than not, they can provide common answers. Amgen, 133 S.Ct. at 1196. In this case, the potential for variation across putative class members — who sold them the relevant securities, how those transactions were effectuated, and what forms of documentation might be offered in support of domesticity — appears to generate a set of individualized inquiries that must be considered within the framework of Rule 23(b)(3)'s predominance requirement. See Tyson Foods, 136 S.Ct. at 1045-46 (explaining that "[a]n individual question is one where members of a proposed class will need to present evidence that varies from member to member...." (internal quotation marks and citation omitted)).
Consider, for instance, the Supreme Court's recent Amgen decision, which similarly involved class claims under Section 10(b) the Exchange Act. 568 U.S. 455, 133 S.Ct. 1184. Such claims require a showing that the defendants made a "material misrepresentation or omission." Id. at 1195. Materiality — like domesticity — is thus an "essential predicate" of an Exchange Act claim. Id. The Amgen Court held, however, that proof of materiality was not required for the purpose of satisfying predominance at the class certification stage. Id. Because materiality is determined objectively from the perspective of the "`reasonable investor,' materiality can be proved through evidence common to the class." Id. (emphasis added) (quoting TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 445, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)). "In no event will the individual circumstances of particular class members bear on the [materiality] inquiry." Id. at 1191. "Consequently, materiality is a common question for purposes of Rule 23(b)(3)." Id. at 1196 (internal quotation marks, alteration, and citation omitted).
In the present action, by contrast, it cannot be said that the class members' Morrison inquiries will "prevail or fail in unison." Id. The district court has already
Finally, we emphasize that district courts are authorized to implement management strategies tailored to the particularities of each case. In addition to modifying class definitions and issuing class-wide rulings, district courts can, for example, bifurcate the proceedings to home in on threshold class-wide inquiries; sever claims not properly adjudicated on a class-wide basis to isolate key common issues; or certify subclasses that separate class members into smaller, more homogenous groups defined by common legal or factual questions.
For the foregoing reasons, we vacate the district court's certification of the Classes insofar as they include all otherwise eligible class members who acquired their Securities in "domestic transactions." We take no position as to whether, on remand, the district court might properly certify one or more classes that capture some or all of the Securities holders who fall within the Classes as currently defined.
The second issue on appeal concerns the district court's finding that the Exchange Act Class was entitled to a presumption of class-wide reliance on the market price of Petrobras's ADS and Notes. In reaching that conclusion, the district court found that Plaintiffs satisfied their burden of showing that the Petrobras Securities traded in efficient markets, as required under the "fraud on the market" theory established in Basic Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). The Petrobras Defendants challenge that finding, arguing that the district court erred in the relative weight it assigned to the parties' competing evidence. We find no error of law in the district court's blended consideration of direct and indirect evidence of market efficiency, nor do we find any clear error in the district court's factual analysis. We therefore affirm as to this issue.
Plaintiffs alleging claims under Section 10(b) of the Exchange Act must prove "(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation." Halliburton Co. v. Erica P. John Fund, Inc. ("Halliburton II"
On its face, the reliance element would appear to preclude class certification on predominance grounds: "[e]ach plaintiff would have to prove reliance individually," with the result that "common issues would not `predominate' over individual ones." Id. at 2416 (citation omitted). The Supreme Court resolved that tension almost three decades ago in Basic Inc. v. Levinson, reasoning that "[a]n investor who buys or sells stock at the price set by the market does so in reliance on the integrity of that price," and so "an investor's reliance on any public material misrepresentations [ ] may be presumed for purposes of a Rule 10b-5 action." 485 U.S. at 247, 108 S.Ct. 978 (emphasis added).
In 2014, the Court affirmed the continued vitality of the "fraud on the market" theory, and clarified that the so-called "Basic presumption actually incorporates two constituent presumptions:"
Halliburton II, 134 S.Ct. at 2414. If a putative class successfully establishes the Basic presumption, "defendants must be
"The fraud-on-the-market theory rests on the premise that certain well developed markets are efficient processors of public information," meaning that "the `market price of shares' will `reflect all publicly available information.'" Amgen, 133 S.Ct. at 1192 (quoting Basic, 485 U.S. at 246, 108 S.Ct. 978 (alteration omitted)).
This Court "has not adopted a test for the market efficiency of stocks or bonds." Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 204 n.11 (2d Cir. 2008). A test based on the so-called "Cammer factors" has been "routinely applied by district courts considering the efficiency of equity markets," and has also been applied, in modified form, "to bond markets with a recognition of the differences between the manner in which debt bonds and equity securities trade." Id.; see also Cammer v. Bloom, 711 F.Supp. 1264, 1286-87 (D.N.J. 1989) (articulating five factors); Krogman v. Sterritt, 202 F.R.D. 467, 478 (N.D. Tex. 2001) (describing three additional factors that are commonly included in Cammer analyses); In re Enron Corp. Sec., 529 F.Supp.2d 644, 747-49 (S.D. Tex. 2006) (applying the Cammer factors in modified form to debt securities).
All but one of the Cammer factors examine indirect indicia of market efficiency for a particular security, such as high trading volume, extensive analyst coverage, multiple market makers, large market capitalization, and an issuer's eligibility for simplified SEC filings. The fifth Cammer factor, however, invites plaintiffs to submit direct evidence, consisting of "empirical facts showing a cause and effect relationship between unexpected corporate events or financial releases and an immediate response in the stock price." Cammer, 711 F.Supp. at 1287; see also Halliburton II, 134 S.Ct. at 2415 ("[P]laintiffs [ ] can and do introduce evidence of the existence of price impact in connection with `event studies' — regression analyses that seek to show that the market price of the defendant's stock tends to respond to pertinent publicly reported events." (citation and emphasis omitted)).
At the outset, the Petrobras Defendants assert an error of law: they challenge the district court's purported holding that Plaintiffs were entitled to the Basic presumption based solely on their indirect evidence of market efficiency. This argument mischaracterizes the district court's analysis. True, the court noted that "Petrobras was one of the largest and most-analyzed firms in the world throughout the Class Period," and explained that in instances where "the indirect [Cammer] factors overwhelmingly describe a large and well-functioning market for Petrobras securities, common sense suggests that the market would materially react to material disclosures." Certification Order, 312 F.R.D. at 367. The opinion did not stop there, however. The court proceeded with an "involved analysis" of Plaintiffs' empirical evidence — which Defendants disputed as to "almost every aspect" — and "ultimately conclude[d] that plaintiffs [had] satisfied the fifth Cammer factor." Id.; see also id. at 367-71. Anything to the contrary was, at most, a holding in the alternative. We therefore decline to reach the Petrobras Defendants' legal question — whether plaintiffs may satisfy the Basic presumption without any direct evidence
Having confirmed the existence of Plaintiffs' direct evidence of market efficiency, we turn to the Petrobras Defendants' attack on the quality of that evidence. They argue, first, that the district court gave undue weight to Plaintiffs' empirical test, which measured the magnitude of responsive price changes in Petrobras Securities without considering the direction of those changes, and second, that the district court unduly discounted Defendants' rebuttal evidence. We find these arguments unpersuasive.
In the class certification proceedings, the parties' "experts [ ] sparred over whether any direct evidence of [Cammer's] fifth factor existed." Id. at 367. Plaintiffs' expert ran multiple event studies and reported that "there were more likely to be big price movements on days when important Petrobras events occurred, demonstrating [that] the markets in Petrobras securities were responsive to new information." Id. at 367-68. Defendants responded with numerous challenges to "the execution and the sufficiency" of that test. Id. at 368. They specifically criticized the test's failure to examine directionality, that is, "whether the price of a security moved up or down as expected based on the precipitating market event." Id. at 369; see also id. at 370 (describing the defense expert's position that "in an efficient market, the price of a security should always move in response to the release of new value-relevant information that is materially different from expectations"). Plaintiffs' expert conducted supplementary analyses of directional price impact, but the district court accorded them "only limited weight" after Defendants highlighted certain methodological flaws. Id. at 369-70. As to the non-directional analysis, the court declined to "let the perfect become the enemy of the good":
Id. at 371.
We find that the district court's conclusion "falls within the range of permissible decisions." Roach, 778 F.3d at 405 (citation omitted). The district court properly declined to view direct and indirect evidence as distinct requirements, opting instead for a holistic analysis based on the totality of the evidence presented. See, e.g., In re JPMorgan Chase & Co. Sec. Litig., No. 12 CIV. 03852 (GBD), 2015 WL 10433433, at *7 (S.D.N.Y. Sept. 29, 2015) ("Defendants' criticisms of Plaintiffs' event study distract[ ] from the central question: Does the weight of the evidence tip in favor of the finding that the market for JPMorgan's common stock was efficient during the Class Period?").
The Petrobras Defendants' contentions on appeal amount to an intensified reformulation of the claim we bypassed above: not only should putative class plaintiffs be required to offer direct evidence of market efficiency, they argue, but the evidence must specifically consist of empirical data showing that the price of the relevant securities predictably moved up in response to good news and down in response to bad news. The gravamen of their claim is that plaintiffs would only be entitled to the Basic presumption after making a substantial showing of market efficiency based on directional empirical evidence alone, irrespective
We reject this proposition. In short, the Petrobras Defendants are attempting to relabel a sufficient condition as a necessary one. We noted in Bombardier that "[a]n event study that correlates the disclosures of unanticipated, material information about a security with corresponding fluctuations in price has been considered prima facie evidence of the existence of such a causal relationship." Bombardier, 546 F.3d at 207-08 (citing In re Xcelera.com Sec. Litig., 430 F.3d 503, 512-14, 516 (1st Cir. 2005)). We never suggested, however, that such evidence was the only way to prove market efficiency; indeed, we explicitly declined to adopt any particular "test for the market efficiency of stocks or bonds." Id. at 204 n.11.
The Supreme Court has similarly declined to define a precise evidentiary standard for market efficiency, but the Court's opinions consistently suggest that the burden is not an onerous one. See Halliburton II, 134 S.Ct. at 2410 ("Even the foremost critics of the efficient-capital-markets hypothesis acknowledge that public information generally affects stock prices," and so "[d]ebates about the precise degree to which stock prices accurately reflect public information are [ ] largely beside the point."); id. at 2417 (Ginsburg, J., concurring) (interpreting the holding in Halliburton II as "impos[ing] no heavy toll on securities-fraud plaintiffs with tenable claims"); Amgen, 133 S.Ct. at 1192 ("[I]t is reasonable to presume that most investors... will rely on [a] security's market price as an unbiased assessment of the security's value in light of all public information."); Basic, 485 U.S. at 246 n.24, 108 S.Ct. 978 ("For purposes of accepting the presumption of reliance ..., we need only believe that market professionals generally consider most publicly announced material statements about companies, thereby affecting stock market prices."); see also id. at 246, 108 S.Ct. 978 ("The presumption is supported by common sense and probability.").
The Petrobras Defendants' proposed evidentiary hierarchy unreasonably discounts the potential probative value of indirect evidence of market efficiency. As noted above, all but one of the widely used Cammer factors focus on elements that would logically appear in, or contribute to, an efficient securities market. Those factors would add little to the Basic analysis if courts only ever considered them after finding a strong showing based on direct evidence alone.
Indeed, indirect evidence is particularly valuable in situations where direct evidence does not entirely resolve the question. Event studies offer the seductive promise of hard numbers and dispassionate truth, but methodological constraints limit their utility in the context of single-firm analyses. See generally Alon Brav & J.B. Heaton, Event Studies in Securities Litigation: Low Power, Confounding Effects, and Bias, 93 Wash. U. L. Rev. 583 (2015); see also id. at 588 n.11 (collecting academic criticism of single-firm event studies). Notably, small sample sizes may
In sum, the district court properly considered a combination of direct and indirect evidence in reaching its conclusion that Petrobras ADS and Notes both trade in efficient markets. The court conducted a rigorous analysis of the parties' proffered evidence and objections. We find no abuse of discretion, and therefore affirm the district court's finding that Plaintiffs were entitled to a presumption of reliance on the market price of the Petrobras Securities. We caution that this determination is limited to the district court's class certification order, and is not binding on the ultimate finder of fact.
For the foregoing reasons, the district court's Certification Order is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED to the district court for further proceedings consistent with this opinion.
The first case to suggest that we apply a different standard to denials of class certification was Lundquist v. Security Pacific Automotive Financial Services Corp., 993 F.2d 11, 14 (2d Cir. 1993) (per curiam). Lundquist cited Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993), and Abrams v. Interco Inc., 719 F.2d 23, 28 (2d Cir. 1983), for the proposition that "we are noticeably less deferential to the district court when that court has denied class status than when it has certified a class." Id. But Abrams and Robidoux do not support this proposition. Abrams states, in relevant part: "Abuse of discretion can be found far more readily on appeals from the denial or grant of class action status than where the issue is, for example, the curtailment of cross-examination or the grant or denial of a continuance," because "courts have built a body of case law with respect to class action status." 719 F.2d at 28 (emphasis added) (citation omitted). Robidoux repeated that "abuse of discretion can be found more readily on appeals from the denial of class status than in other areas, for the courts have built a body of case law with respect to class action status." 987 F.2d at 935 (emphasis added) (citing Abrams, 719 F.2d at 28).
Thus, neither Abrams nor Robidoux applied a different standard to denials versus grants of class certification. Rather, both cases stated that this Court is more likely to find abuse of discretion in appeals involving the issue of class certification — whether certification was granted or denied — when compared with other types of legal issues. It appears that Lundquist misinterpreted that comparison. In sum, no Second Circuit case provides any reasoning or justification for the idea that we review denials of class certification with more scrutiny than grants.
The Supreme Court has never drawn a distinction between the standard used to review district court denials or grants of class certification. See, e.g., Tyson Foods, Inc. v. Bouaphakeo, ___ U.S. ___, 136 S.Ct. 1036, 1045-46, 194 L.Ed.2d 124 (2016). Recent Supreme Court class certification cases emphasize that courts must "conduct a rigorous analysis" to determine whether putative class plaintiffs meet Rule 23's requirements. Comcast Corp. v. Behrend, 569 U.S. 27, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). That said, we need not decide the issue here. We take this opportunity, however, to point out the distinction as one that need not and ought not be drawn. Should the resolution of this issue prove determinative of the outcome in a future matter, the question can likely be resolved by this Court's protocol for the circulation of opinions at that time.
In any event, our opinion in Brecher did not cite to Weiner's fact-based analysis. We cited only to Weiner's articulation of the legal standard for ascertainability, which quoted directly from Charron. See Weiner, 2010 WL 3119452, at *12 (quoting Charron, 269 F.R.D. at 229). Meanwhile, Brecher cited approvingly to Ebin, which explicitly disagreed with Weiner's ascertainability analysis. See Ebin, 297 F.R.D. at 567 (Weiner "goes further than this Court is prepared to go, and, indeed, would render class actions against producers almost impossible to bring.").
