Halliburton and the Dog That Didn't Bark

25 Pages Posted: 17 Jan 2016 Last revised: 21 Feb 2017

Date Written: 2015

Abstract

In Halliburton Co. v. Erica P. John Fund, Inc., the Supreme Court held that defendants in a Section 10(b) class action may use the class certification process to rebut the “fraud on the market” presumption that their misstatements impacted the price of the relevant security. In so doing, the Court struggled to explain why the class-certification process — rather than trial on the merits — was the proper venue for such disputes, and avoided the most obvious justification, namely, that in the absence of price impact, plaintiffs would still be able to bring individual claims. The Court’s unwillingness to hold that plaintiffs may bring “eyeball” reliance claims even without demonstrating price impact suggests that the Court has doubts that such claims are viable.

If so, the Court misinterpreted the fraud on the market theory and the distinction between claims based on individual evaluation of corporate-specific information and claims based on reliance on the market price. The Court’s holding could therefore unfairly impact future claims based on individual reliance. Moreover, the Court’s willingness to front-load disputes into the class-certification stage — without offering a clear justification for doing so — demonstrates that Halliburton was ultimately an exercise in line drawing, representing a compromise position likely motivated by a desire to protect defendants from litigation risks.

Suggested Citation

Lipton, Ann, Halliburton and the Dog That Didn't Bark (2015). Duke Journal of Constitutional Law & Public Policy, Vol. 10, No. 2, 2015, Tulane Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2716293

Ann Lipton (Contact Author)

Tulane Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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