Commentary and analysis of two pending cases on the Supreme Court’s 2012-13 docket, Amgen v. Connecticut Retirement Plans and Trust Funds, and Comcast Corp. v. Behrend. Both cases present the Court with unanswered questions concerning class certification procedure and present the Court with fresh opportunities to tighten class certification requirements. Amgen focuses on the issue whether a plaintiff seeking class certification in a securities fraud class action who invokes the fraud-on-the-market presumption must provide evidence that the alleged misstatements were material to the impact on a company’ stock price. The court also will consider whether a defendant must be afforded the opportunity to present rebuttal evidence to the alleged misstatements during certification proceedings. The Amgen appeal follows one year after the Court’s decision in Erica F. John Fund Inc. v. Halliburton, 131 S. Ct. 2179 (2011), in which a defendant similarly asked the court to tighten the fraud-on-the-market presumption. In a unanimous opinion, the Court rejected this and held that a plaintiff in a Rule 10b-5 securities class action does not need to prove loss causation to obtain class certification.
The appeal in Comcast v. Behrend potentially raises a question left open by the Court’s decision in Wal-Mart v. Dukes (S. Ct. 2011): the appropriate judicial role in evaluating expert-witness testimony at class certification. The Comcast appeal raises several issues: (1) whether the Court should decide the appeal when the parties have settled the underlying dispute; (2) whether the courts properly preserved the issue of the court’s role in resolving the admissibility of expert witness testimony; and (3) whether, if the Court agrees to decide the case, whether the court appropriately resolved the admissibility of expert-witness testimony on classwide damages at class certification.